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EXHIBIT 10.42
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into as of September 13,
1999, or such earlier date as the parties agree (the "Effective Date"), by and
between James Little (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, and the Employee is willing to accept employment by the Company, 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, on the terms and
conditions stated herein.
2. Position and Responsibilities. During the Term, the Employee shall
serve as Vice President Engineering of the Company, reporting directly to the
Company's President. The Employee shall be based in the Company's corporate
headquarters in California and shall be responsible for oversight of all
environmental engineering relating to the Company's operations and properties.
The employee shall 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 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.
3. Term. The period of the Employee's employment under this Agreement
(the "Term") shall commence on the Effective Date and continue until the second
anniversary of the Effective Date, unless terminated earlier as provided herein
or extended by the Board. At the end of the initial Term, this Agreement shall
be renewed automatically 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 Thousand Dollars ($100,000)
per year in installments consistent with the Company's usual practices. The
Board shall review the Employee's Base
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Salary on each anniversary of the Effective Date or more frequently, at the
times prescribed in salary administration practices applied generally to
management employees of the Company.
In addition, if on the first anniversary of the
Effective Date the gross in-the-money value of the Options to purchase 6,667
shares of the Company's Common Stock granted to the Employee and vested on such
first anniversary pursuant to Section 4(a)(3) below is not at least $50,000, the
Employee may elect to have his Base Salary adjusted to One Hundred Twenty-Two
Thousand Dollars ($122,000) per year as of such date, in which case the Employee
shall immediately forfeit those Options to purchase 6,667 shares.
(2) Performance Bonus. The Employee shall be entitled
to an annual cash bonus (the "Bonus") based on the Company's attainment of
reasonable financial objectives to be determined annually by the Board. The
maximum annual Bonus will equal thirty percent (30%) 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.
The Bonus shall be paid in accordance with the Company's bonus plan, as approved
by the Board; provided that in no case shall any portion of the Bonus with
respect to any fiscal year be paid more than seventy-five (75) days after the
end of such fiscal year.
(3) Grant of Options. On the Effective Date, the
Company shall grant to the Employee, for no additional consideration,
nonqualified stock options (the "Options") to purchase 20,000 shares of the
Company's Common Stock under the Company's Amended and Restated 1997 Stock
Option Plan. The Options shall have a term of 10 years from the date of such
grant and shall be exercisable at a price of $19.50 per share. The Options shall
vest and become exercisable with respect to 6,667 shares on each of the first
and second anniversaries of the Effective Date, and with respect to 6,666 shares
on the third anniversary of the Effective Date.
The terms of the Options shall be described in more
detail in a Stock Option Agreement 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.
(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 fee 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 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. If the Employee is not eligible for coverage
under the Company's health insurance policy at the commencement of the Term, the
Company shall reimburse the Employee for the expenses of health insurance
coverage under COBRA from the commencement of the Term
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until the Employee becomes eligible for the health insurance benefits offered by
the Company. The Employee shall be entitled to three (3) weeks of paid vacation
during each of the first three twelve-month periods of his employment, and four
(4) weeks per twelve-month period beginning with the fourth twelve-month period
of employment.
(c) Relocation Benefits. The Company will provide the
following relocation benefits: (i) an initial relocation bonus of $20,000, (ii)
the Employee's temporary lodging and commuting expenses between Ohio and
California for the longer of 90 days or the period ending on the date on which
the Employee sells his home in Ohio (which period may be lengthened by mutual
agreement of the Employee and the Company), (iii) expenses of moving the
Employee's household goods and horse (the expenses for moving the horse not to
exceed $1,500) from the Employee's home in Ohio to the Employee's new home in
the Sacramento, California area when the Employee relocates to California
(including moving insurance, packing and transportation and temporary storage
costs) by a national moving company selected by the Company, (iv) reasonable
realtor's fees (or, if the Employee sells his home without the services of a
realtor, an amount equal to the reasonable realtor's fees that would have been
incurred on such sale) and non-recurring closing costs incurred by the Employee
with respect to the sale of the Employee's home in Ohio, and (v) reasonable
non-recurring closing costs incurred by the Employee with respect to the
purchase of a home in the Sacramento area, and up to 1 point on a mortgage loan
on the purchase of such home. If the Employee voluntarily terminates his
employment within two years after the Effective Date, the Employee shall on such
termination pay the Company an amount equal to the aggregate amount of such
benefits, multiplied by a fraction, the numerator of which is 24 minus the
number of full months the Employee was employed by the Company, and the
denominator of which is 24.
If any benefits described in this Section 4(c) are not
tax-deductible by the Company, the Company shall treat the cost of such benefits
as additional compensation to the Employee ("Relocation Compensation" ) and
shall pay the Employee an additional cash bonus ("Relocation Bonus") sufficient
to cover any Federal, state or local income or employment taxes on such
Relocation Bonus, so that the Employee shall incur no net after-tax expense as a
result of any benefits paid pursuant to this Section 4(c).
(d) Reimbursement of Other Expenses. The Company agrees to pay
or reimburse the Employee for all reasonable travel and other expenses 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.
(e) Withholding. All compensation payable to the Employee
hereunder is subject to all withholding requirements under applicable law.
5. Confidentiality. During the Term of his employment, 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
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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 of his employment 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.
7. Termination.
(a) Termination by the Company for Cause or by the Employee.
The employment of the Employee may be terminated for Cause at any time by the
Board, on written Notice of Termination (as defined in Section 8(a)) delivered
to the Employee describing with specificity the grounds for termination. The
employment of the Employee may also be terminated at any time by the Employee on
written Notice of Termination delivered to the Company. 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 8(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 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 10;
(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
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(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 8(a)). On the
Date of Termination (as defined in Section 8(b)) pursuant to this Section 7(b),
the Company shall pay to the Employee in a lump sum an amount equal to the
greater of (i) the Base Salary payable under Section 4(a)(1) through the end of
the then-current Term at the rate in effect on the Date of Termination, or (ii)
one year's Base Salary at the rate in effect on the Date of Termination. The
Employee may elect to forfeit receipt of all or part of the lump sum described
in the preceding sentence, in exchange for payment by the Company of all or part
of the costs of the Employee's relocating to an area of his choice, with the
amount of the lump sum payment forfeited by the Employee and the amount of the
relocation costs paid by the Company to be determined by agreement between the
Employee and the Company. In addition, on termination of the Employee under this
Section 7(b), all of the Employee's outstanding but unvested 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 option pursuant to this Section
7(b), or Section 7(c) or 7(d), could cause such option to lose its tax-qualified
status if it is an incentive stock option 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 8(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 8(b)) pursuant to this Section 7(c). On the Date of
Termination pursuant to this Section 7(c), all of the Employee's outstanding but
unvested 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 8(b)) pursuant to this Section 7(d), all of
the Employee's outstanding but unvested 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.
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8. Provisions Applicable to Termination of Employment.
(a) Notice of Termination. Any purported termination of
Employee's employment by the Company or by the employee pursuant to Section 7
shall be communicated by Notice of Termination to the Employee or the Company,
as the case may be, as provided herein ("Notice of Termination").
(b) Date of Termination. For all purposes, "Date of
Termination" shall mean the date on which a Notice of Termination is given.
(c) Benefits on Termination. On termination of this Agreement
pursuant to Section 7, 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. Except as otherwise provided in Sections
7(b), 7(c), 7(d) and 9, if the Employee's employment by the Company is
terminated before all of the Employee's options, warrants and rights with
respect to the Company's capital stock have vested, the Employee shall forfeit
any such options, warrants and rights that are unvested as of the termination
date.
9. Change In Control.
(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, and the Employee shall
have the right to forfeit all or part of such amount in exchange for payment by
the Company of certain relocation costs, as described in Section 7(b). In
addition, on a Change of Control, all of the Employee's outstanding but unvested
Options and other options and rights relating to capital stock of the Company
shall immediately vest and become exercisable, and 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 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
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(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 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.
10. 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, 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,
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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, 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 10(a); provided that if the Employee is
terminated by the Company without Cause by the Company pursuant to Section 7(b),
the restrictions in this Section 10(b) shall apply only for as many months after
such termination as are used to calculate the amount actually paid under Section
7(b)(iii) to the Employee on such termination. For example, if the Employee
waives his right to be paid any amount under Section 7(b)(iii) (relating to the
Total Compensation paid to him during the previous twelve months), the
restrictions in this Section 10(b) shall not apply at all; if the Employee
elects to receive under Section 7(b)(iii) an amount equal to only eight months'
Total Compensation, the restrictions shall apply for only eight months.
(c) If the final judgment of a court of competent jurisdiction
declares that any term or provision of this Section 10 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.
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11. 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.
12. Survival of Provisions. The obligations of the Company under
Section 11 of this Agreement, and of the Employee under Sections 5, 6 and 10 of
this Agreement, shall survive both the termination of the Employee's employment
and this Agreement.
13. 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.
14. 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.
15. 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.
16. 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 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.
17. 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.
18. 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.
19. 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.
20. 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 10 of this Agreement, and, in any
action or proceeding to enforce the provisions
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of Sections 5, 6 or 10 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 10, 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.
21. 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.
22. 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: Ronald J. Mittelstaedt
Title: President
EMPLOYEE:
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James Little
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