This Agreement (herein so called) is made and entered into as of the 4th
day of January 1995, by and between Continental Waste Industries, Inc., a New
Jersey corporation (hereinafter referred to as "Employer"), and Xxxxxxx X.
Xxxxxx, (hereinafter referred to as "Employee").
W I T N E S S E T H:
WHEREAS, Employer desires to employ Employee, and Employee desires to be
employed by Employer, as Executive Vice President and General Counsel and to
provide Employee with the opportunity to become a shareholder in the Employer as
provided herein, all upon the terms and conditions hereinafter set forth; NOW,
THEREFORE, in consideration of the premises, and of the mutual covenants
hereinafter set forth, the parties hereto agree as follows:
1. Employment, Duties and Acceptance.
1.1 Employment by Employer. Employer employs Employee, for the Term (as
herein defined), to render full-time services to Employer as its Executive Vice
President and General Counsel and, in connection therewith, to manage its
operations and that of its subsidiaries. Employee will perform the duties that
are consistent with such position as he shall reasonably be directed to perform
by Employer's Board of Directors.
1.2 Acceptance of Employment. Employee accepts such employment and shall
render the services described above.
1.3 Place of Employment. Employee's principal place of employment shall be
Employer's corporate offices in Clark, New Jersey subject to reasonable travel
as the rendering of the services hereunder may require.
2. Term.
The term of Employee's employment by Employer hereunder (the "Employment
Period") shall be for a period of three (3) years from the effective date, as
defined in Paragraph 13 hereof (the "Effective Period"), subject to the
termination provisions of Sections 9.1 through 9.5 hereof. There shall be
automatic one (1) year extensions of the Employment Period thereafter unless
this Agreement is terminated upon 30 days written notice by Employer or unless
superseded by subsequent Agreement by the parties.
3. Compensation.
During the Employment Period, for all services rendered by Employee under this
Agreement, Employer shall pay Employee a salary at the annual rate of One
Hundred Forty Thousand Dollars ($140,000) from the Effective Date hereof and
during the first three years hereof, with increases as the Board of Directors of
Employer determines from time to time, plus a nonaccountable "transportation
allowance," payable monthly on the first business day of each month, in the
amount of Five Hundred Dollars $500 per month. Such salary then in effect ("Base
Salary") is payable in accordance with the customary payroll policy of Employer
in effect at the time such payment is made, or as may otherwise be mutually
agreed upon by the parties. In addition to his Base Salary, Employee will
participate in a management incentive plan, the terms of which shall be
determined by the Board of Directors of the Employer.
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3.1 Incentive Compensation. Employee is eligible to participate in such
annual executive incentive compensation program as developed and implement by
the Board of Directors, said incentive compensation program to include cash
bonuses and stock option grants, to be based on overall Company performance, in
such amounts or percentages of base salary as determined by, and in the sole
discretion of, the Board of Directors.
3.2 Loans. Employer shall from time to time as Employee may request make
loans up to an aggregate of fifteen percent (15%) of Employee's annual salary to
Employee, provided that such loans may be made on a monthly basis equal to
one-twelfth of the aggregate. All such loans must be repaid in full every
eighteen months. Interest shall accrue at the applicable federal rate defined by
the Internal Revenue Code of 1986.
4. Benefits.
Employee shall be entitled to such paid vacation, holidays, sick leave, and
shall be eligible for participation in such group insurance, hospitalization,
major medical, dental, profit sharing, stock options, and other fringe benefit
programs as those afforded executives of Employer; provided, however, that
Employer shall provide in the Employee's name life insurance in the face amount
of not less than Two Hundred Fifty Thousand Dollars ($250,000), and subject to
the provisions of Section 6.2, Employer may elect to provide disability
insurance (the "Disability Policy") with disability benefits of not less than
Two Hundred Fifty Thousand Dollars ($250,000) in the event of permanent total
disability (as defined in the insurance policy) of the Employee. In addition,
Employer agrees to reimburse Employee for all reasonable out-of-pocket expenses
incurred by Employee in the fulfillment of his duties hereunder, including
travel expenses. Such reimbursements will be made promptly, within thirty (30)
days of Employee's submission to Employer of an itemized list of such expenses,
together with receipts therefor indicating the date upon and the purpose for
which such expenses were incurred and such other information as may be
reasonably required from time to time by Employer to substantiate such
expenditures for federal income tax purposes.
5. Status as Employee.
At all times during the Employment Period, Employee shall be deemed to be an
Employee of Employer for purposes of determining Employee's coverage under and
eligibility to participate in, any Employee benefit plans or programs which
Employer now has or may hereafter initiate. In the event it is necessary to
amend any such plan or program in order to assure that Employee is not
discriminated against thereunder, Employer will promptly use its best efforts to
make all such amendments or cause the same to be made.
6. Options Grant Provisions.
6.1 Issuance of Options. Upon the execution of this Agreement, but subject
to the terms and conditions of Clauses 6, 7 and 8 hereof, Employer shall cause
to be issued to Employee 15,000 option to purchase a like number of shares of
common stock of Continental Waste Industries, Inc. at $9.50 per share (the
"Options").
6.2 Vesting. Although the Options shall be delivered on execution hereof,
Employee's ownership rights in the Options shall become vested ratably over
twelve (12) calendar quarters (the "Vested Options"), and shall expire five (5)
years from the date on which they become fully vested, PROVIDED, however, that,
unless otherwise provided for in this Agreement, each vesting will occur only if
Employee remains actively employed on the vesting date specified.
6.3 Restriction on Shares. Employee hereby covenants and agrees that he
shall not sell, transfer, mortgage, pledge or otherwise encumber any of the
unvested Options, or any interest therein. Any such attempt to so transfer or
encumber the unvested Options shall be null and void until such time as all of
the shares are vested under this Agreement.
6.4 Restriction: Unvested Shares and Transfer to Employer. In the event of
any voluntary or involuntary termination of Employee's employment, excluding
death or disability as those terms are described in Section 9 hereof
(hereinafter jointly and severally referred to as "Employment Termination"),
Employee hereby covenants and agrees that: within fifteen (15) days of the date
of Employment Termination, Employee shall transfer to Employer the Unvested
Options. In the event of death or disability as defined in Section 9.2 before
completion of vesting period, unvested Options will become fully vested.
6.5 Assignment. The right of Employer to receive any of the Unvested
Options may be assigned in whole or in part to one or more Employees, officers,
directors or shareholders of Employer or other persons or organizations.
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6.6 Changes in Common Stock of Employer. If from time to time during the
term of this Agreement:
6.6.1 There is a dividend of any security, stock split or other change
in the character or amount of any of the outstanding securities of
Employer; or
6.6.2 There is any consolidation, merger or sale of all, or
substantially all, of the assets of Employer, then, in such event, any and
all new, substituted or additional securities or other property to which
Employee is entitled by reason of his ownership of the Options or the
shares deliverable upon their exercise shall be immediately subject to the
provisions of this Agreement and be included in the definition "Option",
"Unvested Options" and "Vested Options" on a pro rata basis based upon the
number of vested and unvested shares then held by Employee for all purposes
of this Agreement with the same force and effect as the stock presently
subject to this Agreement and with respect to which such securities or
property were distributed. Whenever a specific number of Options is stated
in this Agreement that number shall be amended so as to reflect the
original intention of the parties.
6.7 Restrictive Legend. Shares of commons stock issued on exercise of the
Vested Options shall bear the following restrictive legends:
"[I] THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS ON TRANSFER AND RIGHTS OF PURCHASE IN FAVOR OF
CONTINENTAL WASTE INDUSTRIES, INC. AS SET FORTH IN AN AGREEMENT MADE
BETWEEN THE HOLDER OF THE SECURITIES AND CONTINENTAL WASTE INDUSTRIES,
INC. COPIES OF THE AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO
THE SECRETARY OF CONTINENTAL WASTE INDUSTRIES, INC. ANY ATTEMPT TO
TRANSFER ANY OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IN
VIOLATION OF SUCH RESTRICTIONS AND RIGHTS OF PURCHASE SHALL BE VOID.
[II] THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. THESE SECURITIES HAVE
BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR
RESALE, AND MAY NOT BE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT FOR SUCH SHARES UNDER THE SECURITIES ACT OF 1933, OR
PURSUANT TO RULE 144 UNDER THE ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE CORPORATION THAT REGISTRATION IS NOT REQUIRED
UNDER SUCH ACT".
6.8 In the event of public offering of stock for sale, Shares issued to
Employee on exercise of his Vested Options shall be registered under the
Securities Act of 1933 at the expense of Employer. Employee may be restricted
from offering the Shares for sale for 120 days from the date of the public
offering.
7. Representations and Warranties of Employee. Employee hereby represents
and warrants that:
7.1 Investment. Employee is acquiring the Options for his own account, and
not for the account of any other person and is acquiring them for investment and
not with any view to distribution or resale thereof except in compliance with
the applicable security laws;
7.2 Registration. The offer and sale of the Options and the Shares for
which they may be exercised has not been registered under or qualified under the
Securities Act of 1933, as amended ["the Act"], and the Options and/or Shares
cannot be transferred by Employee unless registration or qualification under the
Act or an exemption from such registration or qualification is available.
Employer has made no Agreements, covenants or undertakings whatsoever to
register any of the Options and/or Shares granted to Employee under the Act.
Employer has made no representations, warranties or covenants whatsoever as to
whether any exemption from the Act will be available;
7.3 Tax Advice. Employer has made no representations or warranties to
Employee with respect to the income tax consequences of the transactions
contemplated by this Agreement and Employee is in no manner relying upon
Employer or Employer's representatives for an assessment of such tax
consequences. Employee has retained his own legal counsel for such advice; and
7.4 Employer Induced. Employer relies on the statements made by Employee in
Sections 7.1 and 7.3 inclusive and was, based on these statements, induced to
issue the Options to Employee on the terms and conditions herein contained.
8. Termination.
8.1 Termination upon Death. If Employee dies during the Term, this
Agreement shall terminate, except that the representative of Employee's estate
shall be entitled to receive the compensation herein provided for the month in
which death occurs, the amount accrued and payable under Section 3.1 hereof,
less the amount of any outstanding loans under Section 3.2 hereof.
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8.2 Termination upon Disability. If during the Term, Employee becomes
physically or mentally disabled, whether totally or partially, so that Employee
is unable substantially to perform his services hereunder for (i) a period of
six consecutive months, or (ii) for shorter periods aggregating six months
during any consecutive twelve month period (Employee's disability for such
period "Disability"), Employer may, at its option, at any time after the last
day of the six consecutive months of disability or the day on which such shorter
periods of disability during any consecutive twelve month period equal an
aggregate of six months, by written notice to Employee, terminate the Term of
Employee's employment hereunder. Nothing in this Section 9.2 shall be deemed to
extend the Term. Upon such termination, Employee shall be entitled to receive
the compensation herein provided for the month in which termination occurs, the
amount accrued and payable under Section 3.1 hereof less the amount of any
outstanding loans under Section 3.2 hereof plus his Base Salary for a period of
fifteen (15) months thereafter, unless Employer elects to purchase the
Disability Policy described in Section 4.
8.3 Termination for Cause. If Employee grossly neglects his duties
hereunder and such gross neglect shall not be discontinued promptly after
written notice thereof, is convicted of any felony, fails or refuses to comply
with the reasonable written policies of Employer or directives of the Board of
Directors of Employer that are not inconsistent with his position and such
failure shall not be discontinued promptly after written notice thereto, or
materially breaches affirmative or negative covenants or undertakings hereunder
and such breach shall not be remedied promptly after written notice thereof,
Employer may at any time by thirty days written notice to Employee terminate the
Term of Employee's employment hereunder. Except for accrued and unpaid salary to
the date of termination, Employee shall have no right to receive any
compensation or benefit from Employer hereunder or to receive any Shares which
are unvested on the date the notice is sent.
8.4 Voluntary Termination. In the event Employee voluntarily terminates his
employment with Employer, during or after the Employment Period, Employee shall
have no right to receive any compensation or benefit from Employer hereunder,
except for accrued and unpaid compensation due on the date of such termination,
and Employee's right to vesting of Options pursuant to Section 6.2 shall
terminate upon the date he gives notice of his intent to terminate.
9. Certain Covenants of Employee.
9.1 Covenants Against Competition. acknowledges that (i) the principal
businesses of Employer involve brokerage of solid waste transport and disposal,
operation and management of solid waste disposal facilities, consulting services
for the solid waste industry, recycling of solid waste and brokerage of
recycling services and materials, and such other and related activities as
Employer may become involved in; (ii) the Employer Business is national in
scope; and (iii) his work for Employer has brought him and will continue to
bring him into close contact with many confidential affairs not readily
available to the public. In order to induce Employer to enter into this
Agreement, Employee covenants and agrees that:
9.1.1 Non-Compete. (a) During Employee's employment with Employer, its
subsidiaries or its affiliates, Employee shall not in the Eastern United
States, including any market region Employer, its subsidiaries or
affiliates has done or contemplates doing business, directly or indirectly,
(i) engage in a business which is competitive with the Employer Business
for his own account; (ii) except for employment by Employer, its
subsidiaries or affiliates, enter the employ of, or render any services to,
any person engaged in such activities; and (iii) become interested in any
person engaged in a business which is competitive with the Employer
Business, directly or indirectly, as an individual, partner, shareholder,
officer, director, principal, agent, Employee, trustee, consultant or in
any other relationship or capacity; provided, however, that Employee may
own, directly or indirectly, solely as an investment, securities of any
entity which are traded on any national securities exchange or in the
over-the-counter market if Employee (a) is not a controlling person of, or
a member of a group which controls, such entity or (b) does not, directly
or indirectly, own 1% or more of any class of securities of such entity.
(b) for a period of two (2) years following the termination
(whether voluntary or involuntary) of Employee's employment with Employer or any
of its affiliates or subsidiaries, Employee shall not in the Untied States of
America directly or indirectly, contact, solicit, sell to, serve or divert
anyone who was a transporter or customer of Employer or did business with
Employer or of any of its affiliates during Employee's employment with Employer.
9.1.2. Confidential Information. During and after the term of
Employee's employment with Employer, Employee shall keep secret and retain
in strictest confidence, and shall not use for the benefit of himself or
others except in connection with the business and affairs of Employer, all
confidential matters of Employer and its subsidiaries or affiliates,
including, without limitation, trade "know-how", secrets, customer lists,
details of contracts, pricing policies, operational methods, marketing
plans or strategies, business acquisition plans, new personnel acquisition
plans, research projects, and other business affairs of Employer, its
subsidiaries, or affiliates, heretofore or hereafter, and shall not
disclose them to anyone, either during or after employment by Employer,
except as required in the course of performing duties hereunder or with
Employer's express written consent.
9.1.3 Property of Employer. All memoranda, notes, lists, records and
other documents (and all copies thereof) made or compiled by Employee or
made available to Employee concerning the business of Employer, its
subsidiaries or its affiliates shall be Employer's property and shall be
delivered to Employer promptly upon the termination of Employee's
employment with Employer, or at any other time on request.
9.1.4. Employees of Employer. During Employee's employment with
Employer, and for a period of two years following the termination (whether
voluntary or involuntary) of Employee's employment with Employer or any of
its subsidiaries or affiliates (the "Restricted Period"), Employee shall
not, directly or indirectly, solicit or encourage any Employee of Employer,
its subsidiaries or its affiliates to leave the employment of Employer, its
subsidiaries or its affiliates.
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9.2 Rights and Remedies upon Breach. If Employee breaches,or threatens to
commit a breach of, any of the provisions of Section 9.1 (the "Restrictive
Covenants"), Employer shall have the following rights and remedies, each of
which rights and remedies shall be independent of the other and severally
enforceable, and all of which rights and remedies shall be in addition to, and
not in lieu of, any other rights and remedies available to Employer under law or
in equity:
9.2.1 Accounting. The right and remedy to require Employee to account
for and pay over to Employer all compensation, profits, monies, accruals or
other benefits (collectively, "Benefits") derived or received by Employee
as the result of any transactions constituting a breach of any of the
Restrictive Covenants, and Employee shall account for and pay over such
Benefits to Employer.
9.3 Injunctive Relief. Employee acknowledges that due to the confidential
nature of his employment relationship, any breach of the Restrictive Covenants
by Employee shall cause irreparable harm to Employer and Employer may, at its
option, obtain injunctive relief. Employee further acknowledges that the scope
and content of the Restrictive Covenants are reasonable.
9.4 Severability of Covenants. If a Court of competent jurisdiction
determines that any of the Restrictive Covenants, or any part thereof, is
invalid or unenforceable, the remainder of the Restrictive Covenants shall not
thereby be affected and shall be given full effect, without regard to the
invalid portions.
9.5 Blue-Pencilling. If a Court of competent jurisdiction construes any of
the Restrictive Covenants, or any part thereof, to be unenforceable because of
the duration of such provision or the area covered thereby, such court shall
have the power to reduce the duration or area of such provision and, in its
reduced form, such provision shall then be enforceable and shall be enforced.
10. Indemnification.
Employer shall indemnify and defend Employee if Employee is made a party, or
threatened to be made a party, to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that Employee is or was an officer or director or Employee of
Employer or any of its subsidiaries or affiliates, in which capacity Employee is
or was serving, including, without limitation, claims of professional
malpractice against the Employee, against expenses (including reasonable
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding to
the fullest extent and in the manner set forth in and permitted by the general
corporation law of the state of incorporation of Employer, and any other
applicable law, as from time to time in effect. In addition, Employer shall
maintain in force and effect at all times during the term hereof: (a) Lawyers
Professional Liability Insurance, in the face amount of $5,000,000/$5,000,000),
with a deductible of $10,000/$25,000, and (b) Directors & Officers Insurance and
Company Reimbursement Coverage, in the face amount of $1,000,000.
11. No Conflicting Agreement.
Employee represents and warrants that as of the effective date of this
Agreement, he will not be a party to any Agreement, contract or understanding
which would in any way restrict or prohibit him from undertaking or performing
his employment in accordance with the terms and conditions of this Agreement.
12. Effective Date.
This Agreement shall become effective as of January 4, 1995.
13. Other Provisions.
13.1 Notices. Any notice or other communication required or which may be
given hereunder shall be in writing and shall be delivered personally,
telegraphed or telexed, or sent by certified, registered or express mail,
postage prepaid, and shall be deemed given when so delivered personally,
telegraphed or telexed, or if mailed, two days after the date of mailing, as
follows:
(i) Employer: Xxxxxx X. Xxxxxx 00 Xxxxxx Xxxxxx, Xxxxx 000 Xxxxx, Xxx
Xxxxxx 00000
(ii) Employee: Employee's home address as indicated in the personnel
records of Employer.
13.2 Entire Agreement. This Agreement contains the entire Agreement between
the parties with respect to the subject matter hereof and supersedes all prior
Agreements, written or oral, with respect thereto.
13.3 Waivers and Amendments. This Agreement may be amended, modified,
superseded, cancelled, renewed or extended, and the terms and conditions hereof
may be waived, only by a written instrument signed by the parties or, in the
case of a waiver, by the party waiving compliance. No delay on the part of any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any waiver on the part of any party of any right,
power or privilege hereunder, nor any single or partial exercise of any right,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, power or privilege hereunder. 13.4 Governing
Law. The parties hereto have relied on New Jersey law in negotiating this
Agreement, which has been negotiated, prepared and executed in New Jersey, and
it is expressly agreed that this Agreement shall be governed and construed in
accordance with the laws of the State of New Jersey applicable to Agreements
made and to be performed entirely within such State, without reference to the
conflicts of laws provisions of the State of New Jersey.
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13.5 Assignment. This Agreement, and the Employee's rights and obligations
hereunder, may not be assigned by Employee. Employer may assign this Agreement
and its rights, together with its obligation, hereunder in connection with any
sale, transfer or other disposition of all or substantially all of its assets or
business, whether by merger, consolidation or otherwise.
13.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
13.7 Heading. The headings in this Agreement are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
CONTINENTAL WASTE INDUSTRIES, INC.
EMPLOYER
By: /s/ Xxxxxx X. Xxxxxx
Title: President and C.E.O.
EMPLOYEE
/s/ Xxxxxxx X. Xxxxxx
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STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT is made as of the 4th day of January, 1995, by
and between CONTINENTAL WASTE INDUSTRIES, INC. (the "Company") and XXXXXXX X.
XXXXXX (the "Holder").
W H E R E A S:
A. The Holder is Executive Vice President, General Counsel and an employee of
the Company, providing management and legal services to the Company (an
"Employee").
B. The effective date of this Agreement and the date for reference shall be as
of and from the 4th day of January, 1995.
NOW THEREFORE WITNESSETH:
1. The Company hereby grants to the Holder upon the terms and conditions
hereinafter contained, the sole and exclusive right and option to purchase all
or part of Fifteen Thousand (15,000) shares of its capital as fully paid and
non-assessable freely trading shares, at a price of $9.50 per share (the "option
shares"), the grant of such option being subject always to the vesting and
termination provisions as set out in paragraphs 2 and 3 hereof.
2. The options granted herein shall become vested ratably over twelve calendar
quarters, i.e., 1,250 options shall become vested on each of the following
dates: April 1, 1995, July 1, 1995, October 1, 1995, January 1, 1996, April 1,
1996, July 1, 1996, October 1, 1996, January 1, 1997, April 1, 1997, July 1,
1997, October 1, 1997 and January 1, 1998, provided that Holder remains employed
by the Company on the specified vesting date. Except as otherwise provided
herein, the options shall expire five years from the date on which they become
fully vested.
3. In the event of the death of the Holder during the term of the options
granted to the Holder under this Agreement, the Holder's personal
representatives shall be entitled to purchase all or any part of the vested
option shares; PROVIDED ALWAYS that the option is exercised and the payment is
tendered within one (1) year of the date of death, SAVE AND EXCEPT that the
vesting of options shall cease and upon the Holder's death.
4. If the Holder at any time and from time to time during the option period
desires to purchase any of the option shares, the Holder may do so by giving
notice to the Company within the time or times herein limited for exercise of
the option and by tendering to the Company at its Registered Office or Head
Office the Holder's certified cheque in favour of the Company in the full amount
of the purchase price payable hereunder for such number of the shares comprised
in the election. The Company shall be required to register, at the Company's
expense, the purchased option shares by S-8 Registration Statement or otherwise,
within six (6) months of any such notice, but not more one time per year.
5. The option granted under this Agreement is non-assignable and
non-transferable.
6. (a) Save and except in the case of the issuance of additional shares
of the Company for a consideration, in the case of any reclassification or
reorganization of the capital of the Company or in the case of the merger
or amalgamation of the Company with or into any other company, or if and
whenever the shares of the Company are subdivided into a greater number or
consolidated into a lesser number of shares, or in the event of any payment
by the Company of a stock dividend, then as a condition of such
reclassification or reorganization of capital, merger, amalgamation,
subdivision, consolidation or payment of a stock dividend, this option
shall be adjusted and lawful and adequate provision shall be made whereby
the Holder hereof shall thereafter have the right to purchase and receive
upon the basis and upon the terms and conditions specified in this Option
Agreement and in lieu of the shares of the Company immediately theretofore
purchasable and receivable upon the exercise of the rights represented
hereby, such shares of stock, securities or assets as may be issued or
payable with respect to or in exchange for a number of outstanding shares
equal to the number of shares of such stock immediately theretofore
purchasable and receivable upon the exercise of the rights represented
hereby had such reclassification or reorganization of capital, merger,
amalgamation, subdivision, consolidation or payment of a stock dividend not
taken place, and in any such case appropriate provision shall be made with
respect to the rights and interest of the Holder to the end that the
provisions hereof (including without limitation provisions for adjustments
of the option price and of the number of shares purchasable upon the
conversion of this option) shall thereafter be applicable, as nearly as may
be in relation to any shares of stock, securities or assets thereafter
deliverable upon the exercise hereof.
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(b) The adjustments provided for in this section in the subscription
rights pursuant to this option are cumulative.
(c) If any question shall at any time arise with respect to any
adjustments to be made under this Clause 6, such question shall be
conclusively determined by the Company's auditor, and such determination
shall be binding upon the Company and the Holder.
7. This Agreement shall enure to the benefit of the Holder and shall to the
extent hereinbefore provided enure to the benefit of the Holder's heirs,
executors and administrators.
8. This Agreement shall be interpreted in connection with that certain
Employment Agreement of even date herewith by and between the Company and
Holder, which is incorporated herein by reference, including, without
limitation, Holder's representations and warranties contained in Paragraph 7 of
the Employment Agreement. Any inconsistencies between this Option Agreement and
the Employment Agreement shall be resolved in favor of the Employment Agreement.
IN WITNESS WHEREOF the parties hereto have caused these presents to be
executed as and from the day, month and year first above written.
CONTINENTAL WASTE INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
Title: President and C.E.O.
HOLDER /s/ Xxxxxxx X. Xxxxxx
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