EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made and entered into
effective August 1, 2000, by and between ALLIED WASTE INDUSTRIES, INC., a
Delaware corporation having its principal office at 00000 Xxxxx Xxxxxxxx-Xxxxxx
Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000 ("Company") and XXXXXX X. XXXX
("Executive").
W I T N E S S E T H:
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WHEREAS, on July 26, 2000, the Company extended an offer to employ the
Executive as its Chief Financial Officer, and the Executive accepted that offer;
and
WHEREAS, the Company and the Executive desire to set forth the terms and
conditions of the Executive's employment the Company in this Agreement.
NOW, THEREFORE, for and in consideration of the mutual promises, covenants
and obligations contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Company and the
Executive hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms have
the meanings prescribed below:
Affiliate is used in this Agreement to define a relationship to a person or
entity and means a person or entity who, directly or indirectly through one or
more intermediaries, controls, is controlled by, or is under common control
with, such person or entity.
Annual Bonus shall have the meaning assigned thereto in Section 4.2 hereof.
Base Salary shall have the meaning assigned thereto in Section 4.1 hereof.
Beneficial Owner shall have the meaning assigned thereto in Rule 13(d)-3
under the Exchange Act; provided, however, and without limitation, that any
individual, corporation, partnership, group, association or other person or
entity that has the right to acquire any Voting Stock at any time in the future,
whether such right is (a) contingent or absolute or (b) exercisable presently or
at any time in the future, pursuant to any agreement or understanding or upon
the exercise or conversion of rights, options or warrants, or otherwise, shall
be the Beneficial Owner of such Voting Stock.
Cause shall have the meaning assigned thereto in Section 5.3 hereof.
Change in Control of the Company shall be deemed to have occurred if (i)
the Company merges or consolidates, or agrees to merge or to consolidate, with
any other corporation (other than a wholly-owned direct or indirect subsidiary
of the Company) and is not the surviving corporation (or survives as a
subsidiary of another corporation), (ii) the Company sells, or agrees to sell,
all or substantially all of its assets to any other person or entity, (iii) the
Company is dissolved, (iv) any third person or entity (other than a trustee or
committee of any qualified employee benefit plan of the Company) together with
its Affiliates shall become or shall have publicly announced its intention to
become (by tender offer or otherwise), directly or indirectly, the Beneficial
Owner of at least 30% of the Voting Stock of the Company, or (v) the individuals
who constitute the Board of Directors of the Company as of the Effective Date
("Incumbent Board") shall cease for any reason to constitute at least a majority
of the Board of Directors; provided, that any person becoming a director whose
election or nomination for election was approved by a majority of the members of
the Incumbent Board shall be considered, for the purposes of this Agreement, a
member of the Incumbent Board.
Code means the Internal Revenue Code of 1986, as amended, and the rules and
regulations promulgated by the Internal Revenue Service thereunder, all as in
effect from time to time during the Employment Period.
Common Stock means the Company's common stock, par value $.01 per share.
Company means Allied Waste Industries, Inc., a Delaware corporation, the
principal office of which is located at 00000 Xxxxx Xxxxxxxx Xxxxxx Xxxx, Xxxxx
000, Xxxxxxxxxx, Xxxxxxx 00000.
Confidential Information shall have the meaning assigned thereto in Section
8.2 hereof.
Date of Termination means the earliest to occur of (i) the date of the
Executive's death, (ii) the date on which the Executive terminates this
Agreement for any reason other than Good Reason or (iii) the date of receipt of
the Notice of Termination, or such later date as may be prescribed in the Notice
of Termination in accordance with Section 5.6 hereof.
Disability means an illness or other disability which prevents the
Executive from discharging his responsibilities under this Agreement for a
period of 180 consecutive calendar days, or an aggregate of 180 calendar days in
any calendar year, during the Employment Period, all as determined in good faith
by the Board of Directors of the Company (or a committee thereof).
Effective Date means August 1, 2000.
Employment Period shall have the meaning assigned thereto in Section 3
hereof.
Exchange Act means the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated by the Securities and Exchange Commission
thereunder, all as in effect from time to time during the Employment Period.
Executive means Xxxxxx X. Xxxx.
Good Reason shall have the meaning assigned thereto in Section 5.5 hereof.
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Notice of Termination shall have the meaning assigned thereto in Section
5.6 hereof.
Vacation Time shall have the meaning assigned thereto in Section 4.3
hereof.
Voting Stock means all outstanding shares of capital stock of the Company
entitled to vote generally in an election of directors; provided, however, that
if the Company has shares of Voting Stock entitled to more or less than one vote
per share, each reference to a proportion of the issued and outstanding shares
of Voting Stock shall be deemed to refer to the proportion of the aggregate
votes entitled to be cast by the issued and outstanding shares of Voting Stock.
Without Cause shall have the meaning assigned thereto in Section 5.4
hereof.
2. General Duties of Company and Executive.
2.1 The Company agrees to employ the Executive, and the Executive
agrees to accept employment by the Company and to serve the Company as its
Chief Financial Officer. The authority, duties and responsibilities of the
Executive shall include those described in Schedule A to this Agreement,
and such other or additional duties as may from time to time be assigned to
the Executive by the Board of Directors (or a committee thereof) and agreed
to by the Executive, which will be reflected in an amended Schedule A.
While employed hereunder, the Executive shall devote reasonable time and
attention during normal business hours to the affairs of the Company and
use his best efforts to perform faithfully and efficiently his duties and
responsibilities. The Executive may (i) serve on corporate, civic or
charitable boards or committees, (ii) deliver lectures, fulfill speaking
engagements or teach at educational institutions, and (iii) manage personal
investments, so long as such activities do not significantly interfere with
the performance of the Executive's duties and responsibilities.
2.2 The Executive agrees and acknowledges that he owes a fiduciary
duty of loyalty, fidelity and allegiance to act at all times in the best
interests of the Company and to do no act and to make no statement, oral or
written, which would injure Company's business, its interests or its
reputation.
2.3 The Executive agrees to comply at all times during the Employment
Period with all applicable policies, rules and regulations of the Company,
including, without limitation, the Company's Code of Ethics and the
Company's policy regarding trading Common Stock, as each is in effect from
time to time during the Employment Period.
3. Term. Unless sooner terminated pursuant to Section 5 of this Agreement,
the Executive's Employment Period under this Agreement shall be a period of
three (3) years beginning on the Effective Date; provided that, beginning on the
first anniversary of the Effective Date, the Employment Period shall be for a
continuous period of two (2) years, such that on any given date thereafter, the
Executive's Employment Period shall always be two (2) years from the date in
question.
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4. Compensation and Benefits.
4.1 Base Salary. As compensation for services to the Company, the
Company shall pay to the Executive until the Date of Termination an annual
base salary of $550,000.00 ("Base Salary"). The Board of Directors (or a
committee thereof), in its discretion, may increase the Base Salary based
upon relevant circumstances. The Base Salary shall be payable in equal
semimonthly installments or in accordance with the Company's established
policy, subject only to such payroll and withholding deductions as may be
required by law and other deductions applied generally to employees of the
Company for insurance and other employee benefit plans. For all purposes
under this Agreement, the Executive's Base Salary shall include any amount
which is deferred under any nonqualified plan or arrangement.
4.2 Annual Bonus. In addition to the Base Salary, the Executive shall
be awarded, for each fiscal year until the Date of Termination, an annual
bonus (either pursuant to a bonus or incentive plan or program of the
Company or otherwise) in an amount to be determined by the Board of
Directors (or a committee thereof) in its sole discretion ("Annual Bonus").
Each such Annual Bonus shall be payable at a time to be determined by the
Board of Directors (or a committee thereof) in its sole discretion. For all
purposes under this Agreement, the Executive's Annual Bonus shall include
any amount which is deferred under any nonqualified plan or arrangement.
4.3 Vacation. Until the Date of Termination, the Executive shall be
entitled to four weeks paid vacation during each one year period commencing
on the Effective Date ("Vacation Time"). Any Vacation Time not taken during
the applicable one year period will not accrue and will expire on the
applicable anniversary of the Effective Date.
4.4 Automobile Allowance. Until the Date of Termination, the Executive
shall receive an automobile allowance of $600.00 per month ("Automobile
Allowance"). The Board of Directors (or a committee thereof), in its
discretion, may increase the Automobile Allowance based upon relevant
circumstances.
4.5 Club Membership Dues. Until the Date of Termination, the Executive
shall receive an amount per month equal to the monthly membership dues
which the Executive pays for one club or organization of Executive's
choice.
4.6 Incentive, Savings, Retirement and Stock Plans. The Executive
shall participate in and be eligible to receive all benefits under all
executive incentive, savings, retirement and stock (including any stock
option, restricted stock, phantom stock and other stock rights) plans and
programs currently maintained or hereinafter established by the Company for
the benefit of its executive officers and/or employees (collectively
"Compensation Plans"). The Executive's participation in all such
Compensation Plans shall be governed by the terms and provisions of each
separate Compensation Plan.
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4.7 Welfare Benefit Plans. The Executive and/or the Executive's
family, as the case may be, shall be eligible to participate in and shall
receive all benefits under each welfare benefit plan of the Company
currently maintained or hereinafter established by the Company for the
benefit of its employees. Such welfare benefit plans may include, without
limitation, medical, dental, disability, group life, accidental death and
travel accident insurance plans and programs (collectively "Welfare
Plans"). The Executive's and/or the Executive's family's participation in
all such Plans shall be subject to the terms and conditions of each
separate Welfare Plan.
4.8 Reimbursement of Expenses. The Executive may from time to time
until the Date of Termination incur various business expenses customarily
incurred by persons holding positions of like responsibility, including,
without limitation, travel, entertainment and similar expenses incurred for
the benefit of the Company. Subject to the Company's policy regarding the
reimbursement of such expenses as in effect from time to time during the
Employment Period, which does not necessarily allow reimbursement of all
such expenses, the Company shall reimburse the Executive for such expenses
from time to time, at the Executive's request, and the Executive shall
account to the Company for all such expenses.
5. Termination.
5.1 Death. This Agreement shall terminate automatically upon the death
of the Executive.
5.2 Disability. The Company may terminate this Agreement, upon written
notice to the Executive delivered in accordance with Sections 5.6 and 12.1
hereof, upon the Disability of the Executive.
5.3 Cause. The Company may terminate this Agreement, upon written
notice to the Executive delivered in accordance with Sections 5.6 and 12.1
hereof, for Cause. For purposes of this Agreement, "Cause" means (i) the
conviction of the Executive for a felony, (ii) the Executive's willful
refusal, without proper legal cause, to perform his duties and
responsibilities as contemplated in this Agreement or (iii) the Executive's
willfully engaging in activities which would (A) constitute a breach of any
term of this Agreement, the Company's Code of Ethics, the Company's
policies regarding trading Common Stock or reimbursement of business
expenses or any other applicable policies, rules or regulations of the
Company, or (B) result in a material injury to the business, condition
(financial or otherwise), results of operations or prospects of the Company
or its Affiliates (as determined in good faith by the Board of Directors of
the Company or a committee thereof). For purposes of the definition of
"Cause," no act or failure to act shall be considered "willful" unless it
is done, or omitted to be done, in bad faith without reasonable belief that
the action or omission was in the best interests of the Company.
5.4 Without Cause. The Company may terminate this Agreement Without
Cause, upon written notice to the Executive delivered in accordance with
Sections 5.6 and 12.1 hereof. For purposes of this Agreement, the Executive
will be deemed to have been terminated "Without Cause" if the Executive is
terminated by the Company for any reason other than Cause, Disability or
Death.
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5.5 Good Reason. The Executive may terminate this Agreement for Good
Reason, upon written notice to the Company delivered in accordance with
Sections 5.6 and 12.1 hereof. For purposes of this Agreement, "Good Reason"
means (i) the assignment to the Executive of any duties inconsistent in any
respect with the Executive's duties or responsibilities as contemplated in
this Agreement, (ii) any other action by the Company which results in a
diminishment in the Executive's position (including status, offices, titles
and reporting requirements), authority, duties or responsibilities, (iii)
any breach by the Company of any of the provisions of this Agreement, (iv)
requiring the Executive to relocate permanently to any office or location
other than the Phoenix-Scottsdale metropolitan area, without his consent,
or (v) any reduction, or attempted reduction, at any time during the
Employment Period, of the Base Salary of the Executive.
5.6 Notice of Termination. Any termination of this Agreement by the
Company for Cause, Without Cause or as a result of the Executive's
Disability, or by the Executive for Good Reason, shall be communicated by
Notice of Termination to the other party hereto given in accordance with
this Agreement. For purposes of this Agreement, a "Notice of Termination"
means a written notice which (i) indicates the specific termination
provision in this Agreement relied upon, (ii) sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated
and (iii) specifies the termination date, if such date is other than the
date of receipt of such notice (which termination date shall not be more
than 15 days after the giving of such notice).
6. Obligations of Company Upon Termination.
6.1 Cause, Other than Good Reason. If this Agreement is terminated
either by the Company for Cause or by the Executive for any reason other
than Good Reason, the Company shall pay to the Executive, in a lump sum
cash payment within 30 days after the Date of Termination, the aggregate of
the Executive's Base Salary (as in effect on the Date of Termination) owing
as of the Date of Termination, if not theretofore paid, and, in the case of
compensation previously deferred by the Executive, all amounts of such
compensation previously deferred and not yet paid by the Company (unless
such payment is inconsistent with the terms of any payment election made by
the Executive with respect to such deferred compensation). The Company also
shall, promptly upon submission by the Executive of supporting
documentation, pay or reimburse to the Executive any costs and expenses
(including moving and relocation expenses) paid or incurred by the
Executive which would have been payable under Section 4.8 of this Agreement
if the Executive's employment had not terminated.
All other obligations of the Company and rights of the Executive hereunder
shall terminate effective as of the Date of Termination; provided, however, that
the Executive's rights under any Compensation Plan or Welfare Plan shall be
governed by the terms and provisions of each such plan and are not necessarily
severed on the Date of Termination.
6.2 Death or Disability.
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(a) Subject to the provisions of this Section 6.2, if this
Agreement is terminated as a result of the Executive's death or
Disability, the Company shall pay to the Executive or his estate, in a
lump sum cash payment within 30 days of the Date of Termination, the
greater of (i) that portion of the Executive's Base Salary (as in
effect on the Date of Termination) owing in respect of the balance of
the Employment Period pursuant to Section 3 hereof or (ii) the
Executive's Base Salary (as in effect on the Date of Termination). The
Company may purchase insurance to cover all or any part of the
obligation contemplated in the foregoing sentence, and the Executive
agrees to submit to a physical examination to facilitate the
procurement of such insurance. The Company also shall, promptly upon
submission by the Executive of supporting documentation, pay or
reimburse to the Executive any costs and expenses (including moving
and relocation expenses) paid or incurred by the Executive which would
have been payable under Section 4.8 of this Agreement if the
Executive's employment had not terminated. Until the Executive obtains
other health coverage through another employer's health plan or, if
longer, for a period of five (5) years, the Company shall continue
providing health coverage to the Executive and/or the Executive's
family at least equal to that which would have been provided to them
under Section 4.7 if the Executive's employment had not terminated;
provided that any such coverage shall cease immediately if the
Executive violates any of the applicable provisions of Article 11.
(b) Whenever compensation is payable to the Executive hereunder
during a period in which he is partially or totally disabled, and such
Disability would (except for the provisions hereof) entitle the
Executive to Disability income or salary continuation payments from
the Company according to the terms of any plan or program presently
maintained or hereafter established by the Company, the Disability
income or salary continuation paid to the Executive pursuant to any
such plan or program shall be considered a portion of the payment to
be made to the Executive pursuant to this Section 6.2 and shall not be
in addition hereto. If Disability income is payable directly to the
Executive by an insurance company under the terms of an insurance
policy paid for by the Company, the amounts paid to the Executive by
such insurance company shall be considered a portion of the payment to
be made to the Executive pursuant to this Section 6.2 and shall not be
in addition hereto.
6.3 Good Reason; Without Cause. If this Agreement is terminated either
by the Executive for Good Reason or by the Company Without Cause:
(a) the Company shall pay to the Executive, in a lump sum cash
payment within 30 days after the Date of Termination, the aggregate of
the following amounts:
(1) if not theretofore paid, the Executive's Base Salary (as
in effect on the Date of Termination) through the Date of
Termination;
(2) an amount equal to the largest Annual Bonus paid to the
Executive out of the last three (3) fiscal years preceding the
Date of Termination; and
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(3) in the case of compensation previously deferred by the
Executive, all amounts of such compensation previously deferred
and not yet paid by the Company (unless such payment is
inconsistent with the terms of any payment election made by the
Executive with respect to such deferred compensation).
(b) the Company shall, promptly upon submission by the Executive
of supporting documentation, pay or reimburse to the Executive any
costs and expenses (including moving and relocation expenses) paid or
incurred by the Executive which would have been payable under Section
4.8 of this Agreement if the Executive's employment had not
terminated; and
(c) until the Executive obtains other health coverage through
another employer's health plan or, if longer, for a period of five (5)
years, the Company shall continue providing health coverage to the
Executive and/or the Executive's family at least equal to that which
would have been provided to them under Section 4.7 if the Executive's
employment had not terminated; provided that any such coverage shall
cease immediately if the Executive violates any of the applicable
provisions of Article 11.
(d) the Company shall pay to the Executive, in equal semi-monthly
installments, the greater of (i) that portion of the Executive's Base
Salary (as in effect on the Date of Termination) owing, in respect of
the balance of the Employment Period pursuant to Section 3 hereof or
(ii) the Executive's Base Salary (as in effect on the Date of
Termination); provided that such payments shall cease immediately if
the Executive violates any applicable provision of Article 11.
6.4 Change in Control.
If (a) this Agreement is terminated either by the Executive for Good Reason
or by the Company Without Cause and (b) a Change in Control of the Company has
occurred within the two-year period preceding, or within the one-year period
following, the Date of Termination, then, in addition to the obligations of the
Company set forth in Section 6.3 hereof, the Company shall pay to the Executive,
in a lump sum cash payment within 30 days after the Date of Termination, two
times the sum of (x) the Executive's Base Salary (as in effect on the Date of
Termination or such higher rate as may have been in effect at any time during
the 90-day period preceding the Date of Termination) and (y) the Annual Bonus
paid to the Executive for the last full fiscal year. The rights given to the
Executive herein do not apply to the Change of Control of the Company which
occurred when Apollo Advisors, L.P. and The Blackstone Group acquired the Common
Stock of Xxxxxxx Transportation, Inc.
7. Executive's Obligation to Avoid Conflicts of Interest.
7.1 In keeping with the Executive's fiduciary duties to the Company,
the Executive agrees that he shall not knowingly become involved in a
conflict of interest with the Company, or upon discovery thereof, allow
such a conflict to continue. The Executive further agrees to disclose to
the Company, promptly after discovery, any facts or circumstances which
might involve a conflict of interest with the Company.
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7.2 The Company and the Executive recognize that it is impossible to
provide an exhaustive list of actions or interests which constitute a
"conflict of interest." Moreover, the Company and the Executive recognize
that there are many borderline situations. In some instances, full
disclosure of facts by the Executive to the Company is all that is
necessary to enable the Company to protect its interests. In others, if no
improper motivation appears to exist and the Company's interests have not
suffered, prompt elimination of the outside interest will suffice. In still
others, it may be necessary for the Company to terminate the employment
relationship. The Company and the Executive agree that the Company's
determination as to whether or not a conflict of interest exists shall be
conclusive. The Company reserves the right to take such action as, in its
judgment, will end the conflict of interest.
7.3 In this connection, it is agreed that any direct or indirect
interest in, connection with or benefit from any outside activities,
particularly commercial activities, which interest might in any way
adversely affect the Company or its Affiliates, involves a possible
conflict of interest. Circumstances in which a conflict of interest on the
part of the Executive would or might arise, and which should be reported
immediately to the Company, include, but are not limited to, the following:
(a) Ownership of a material interest in any lender, supplier,
contractor, subcontractor, customer or other entity with which the
Company does business.
(b) Acting in any capacity, including director, officer, partner,
consultant, employee, distributor, agent or the like, for any lender,
supplier, contractor, subcontractor, customer or other entity with
which the Company does business.
(c) Acceptance, directly or indirectly, of payments, services or
loans from a lender, supplier, contractor, subcontractor, customer or
other entity with which the Company does business, including, without
limitation, gifts, trips, entertainment or other favors of more than a
nominal value, but excluding loans from publicly held insurance
companies and commercial or savings banks at market rates of interest.
(d) Use of information or facilities to which the Executive has
access in a manner which will be detrimental to the Company's
interests, such as use for the Executive's own benefit of know-how or
information developed through the Company's business activities.
(e) Disclosure or other misuse of information of any kind
obtained through the Executive's connection with the Company.
(f) Acquiring or trading in, directly or indirectly, other
properties or interests connected with the design or marketing of
products or services designed or marketed by the Company.
8. Executive's Confidentiality Obligation.
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8.1 The Executive hereby acknowledges, understands and agrees that all
Confidential Information is the exclusive and confidential property of the
Company and its Affiliates which shall at all times be regarded, treated
and protected as such in accordance with this Section 8. The Executive
acknowledges that all such Confidential Information is in the nature of a
trade secret.
8.2 For purposes of this Agreement, "Confidential Information" means
information, that is used in the business of the Company or its Affiliates
and (i) is proprietary to, about or created by the Company or its
Affiliates, (ii) gives the Company or its Affiliates some competitive
business advantage or the opportunity of obtaining such advantage or the
disclosure of which could be detrimental to the interests of the Company or
its Affiliates, (iii) is designated as Confidential Information by the
Company or its Affiliates, is known by the Executive to be considered
confidential by the Company or its Affiliates, or from all the relevant
circumstances should reasonably be assumed by the Executive to be
confidential and propriety to the Company or its Affiliates, or (iv) is not
generally known by non-Company personnel. Such Confidential Information
includes, without limitation, the following types of information and other
information of a similar nature (whether or not reduced to writing or
designed as confidential):
(a) Internal personnel and financial information of the Company
or its Affiliates, vendor information (including vendor
characteristics, services, prices, lists and agreements), purchasing
and internal cost information, internal service and operational
manuals, and the manner and methods of conducting the business of the
Company or its Affiliates;
(b) Marketing and development plans, price and cost data, price
and fee amounts, pricing and billing policies, quoting procedures,
marketing techniques, forecasts and forecast assumptions and volumes,
and future plans and potential strategies (including, without
limitation, all information relating to any acquisition prospect and
the identity of any key contact within the organization of any
acquisition prospect) of the Company or its Affiliates which have been
or are being discussed;
(c) Names of customers and their representatives, contracts
(including their contents and parties), customer services, and the
type, quantity, specifications and content of products and services
purchased, leased, licensed or received by customers of the Company or
its Affiliates; and
(d) Confidential and proprietary information provided to the
Company or its Affiliates by any actual or potential customer,
government agency or other third party (including businesses,
consultants and other entities and individuals).
8.3 As a consequence of the Executive's acquisition or anticipated
acquisition of Confidential Information, the Executive shall occupy a
position of trust and confidence with respect to the affairs and business
of the Company and its Affiliates. In view of the foregoing, and of the
consideration to be provided to the Executive, the Executive agrees that it
is reasonable and necessary that the Executive make each of the following
covenants:
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(a) At any time during the Employment Period and thereafter, the
Executive shall not disclose Confidential Information to any person or
entity, either inside or outside of the Company, other than as
necessary in carrying out his duties and responsibilities as set forth
in Section 2 hereof, without first obtaining the Company's prior
written consent (unless such disclosure is compelled pursuant to court
orders or subpoena, and at which time the Executive shall give notice
of such proceedings to the Company).
(b) At any time during the Employment Period and thereafter, the
Executive shall not use, copy or transfer Confidential Information
other than as necessary in carrying out his duties and
responsibilities as set forth in Section 2 hereof, without first
obtaining the Company's prior written consent.
(c) On the Date of Termination, the Executive shall promptly
deliver to the Company (or its designee) all written materials,
records and documents made by the Executive or which came into his
possession prior to or during the Employment Period concerning, the
business or affairs of the Company or its Affiliates, including,
without limitation, all materials containing Confidential Information.
9. Disclosure of Information, Ideas, Concepts, Improvements, Discoveries
and Inventions. Consistent with the Executive's fiduciary duties to the Company,
the Executive agrees that during his employment by the Company, the Executive
shall promptly disclose in writing to the Company all information, ideas,
concepts, improvements, discoveries and inventions, which are conceived,
developed, made or acquired by the Executive, either individually or jointly
with others, and which relate to the business, products or services of the
Company or its Affiliates, irrespective of whether the Executive used the
Company's time or facilities and irrespective of whether such information, idea,
concept, improvement, discovery or invention was conceived, developed,
discovered or acquired by the Executive on the job, at home, or elsewhere. This
obligation extends to all types of information, ideas and concepts, including,
information, ideas and concepts relating to new types of services, corporate
opportunities, acquisition prospects, the identity of key representatives within
acquisition prospect organizations, prospective names or service marks for the
Company's business activities, and the like.
10. Ownership of Information, Ideas, Concepts, Improvements, Discoveries
and all Original Works of Authorship.
10.1 All information, ideas, concepts, improvements, and discoveries
which are conceived, made, developed or acquired by the Executive or which
are disclosed or made known to the Executive, individually or in
conjunction with others, during the Executive's employment by the Company
and which relate to the business, products or services of the Company or
its Affiliates (including, without limitation, all such information
relating to corporate opportunities, research, financial and sales data,
pricing and trading terms, evaluations, opinions, interpretations,
acquisition prospects, the identity of customers or their requirements, the
identity of key contacts within the customers' organizations or within the
organization of acquisition prospects, marketing and merchandising
techniques, and prospective names and service marks) are and shall be the
sole and exclusive property of the Company. Furthermore, all drawings,
memoranda, notes, records, files, correspondence, manuals, models,
specifications, computer programs, maps and all other writings or materials
of any type embodying any of such information, ideas, concepts,
improvements, and discoveries are and shall be the sole and exclusive
property of the Company.
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10.2 In particular, the Executive hereby specifically sells, assigns,
transfers and conveys to the Company all of his worldwide right, title and
interest in and to all such information, ideas, concepts, improvements, and
discoveries, and any United States or foreign applications therefor. The
Executive shall assist the Company and its nominee at all times and in all
manners, during the Employment Period and thereafter, in the protection of
such information, ideas, concepts, improvements, or discoveries.
10.3 In the event the Executive creates, during the Employment Period,
any original work of authorship fixed in any tangible medium of expression
which is the subject matter of copyright such as videotapes, written
presentations on acquisitions, computer programs, drawings, maps,
architectural renditions, models, manuals, brochures or the like relating
to the Company's business products or services, whether such work is
created solely by the Executive or jointly with others, the Company shall
be deemed the author of such work if the work is prepared by the Executive
within the scope of his employment; or, if the work is not prepared by the
Executive within the scope of his employment but is specially ordered by
the Company as a contribution to a collective work, as a part of a motion
picture or other audiovisual work, as a translation, as a supplementary
work, as a compilation or as an instructional text, then the work shall be
considered to be a work made for hire, and the Company shall be the author
of such work. If such work is neither prepared by the Executive within the
scope of his employment nor a work specially ordered and deemed to be a
work made for hire, then the Executive hereby agrees to sell, transfer,
assign and convey, and by these presents, does sell, transfer, assign and
convey, to the Company all of the Executive's worldwide right, title and
interest in and to such work and all rights of copyright therein. The
Executive agrees to assist the Company and its Affiliates, at all times,
during the Employment Period and thereafter, in the protection of the
Company's worldwide right, title and interest in and to such work and all
rights of copyright therein, which assistance shall include, but shall not
be limited to, the execution of all documents requested by the Company or
its nominee and the execution of all lawful oaths and applications for
registration of copyright in the United States and foreign countries.
11. Executive's Non-Competition and Non-Solicitation Obligations.
11.1 (a) Until the Date of Termination, the Executive shall not,
acting alone or in conjunction with others, directly or indirectly, engage,
participate, invest, accept employment or render services as a principal,
director, officer, agent, employee, employer, consultant or in any other
individual or representative capacity in or with any business which
competes, directly or indirectly, with the Employer's business in any of
the business territories in which the Company or any of its Affiliates is
presently or from time to time during the Employment Period conducting
business, or take any action inconsistent with the fiduciary relationship
of an employee to his employer; provided, however, that the beneficial
ownership by the Executive of up to three (3) percent of the Voting Stock
of any corporation subject to the periodic reporting requirements of the
Exchange Act shall not violate this Section 11.1(a).
12
(b) In addition to the other obligations agreed to by the
Executive in this Agreement, the Executive agrees that until the Date
of Termination, he shall not, directly or indirectly, (i) induce,
entice or solicit any employee of the Company to leave his employment,
(ii) contact, communicate or solicit any customer or acquisition
prospect of the Company derived from any customer list, customer lead,
mail, printed matter or other information secured from the Company or
its present or past employees (other than in connection with the
performance of his services for the Company in accordance with Section
2 of this Agreement) or (iii) in any other manner use any customer
lists or customer leads, mail, telephone numbers, printed material or
other information of the Company relating thereto (other than in
connection with the performance of his services for the Company in
accordance with Section 2 of this Agreement).
11.2 (a) If this Agreement is terminated either by the Company for
Cause or by the Executive for any reason other than Good Reason, then for a
period of three (3) years following the Date of Termination, the Executive
shall not, acting alone or in conjunction with others, directly or
indirectly, engage, participate, invest, accept employment, or render
services as a principal, director, officer, agent, employee, employer,
consultant or in any other individual or representative capacity in or with
any business which competes, directly or indirectly, with the Employer's
business and which is located in any of the business territories in which
the Company or any of its Affiliates is presently or at the Date of
Termination conducting business, or take any action inconsistent with the
fiduciary relationship of an employee to his employer; provided, however,
that the beneficial ownership by the Executive of up to three (3) percent
of the Voting Stock of any corporation subject to the periodic reporting
requirements of the Exchange Act shall not violate this Section 11.2(a).
(b) In addition to the other obligations agreed to by the
Executive in this Agreement, the Executive agrees that if this
Agreement is terminated either by the Company for Cause or by the
Executive for any reason other than Good Reason, then for a period of
three (3) years following the Date of Termination, he shall not,
directly or indirectly, (i) induce, entice or solicit any employee of
the Company to leave his employment, (ii) contact, communicate or
solicit any customer or acquisition prospect of the Company derived
from any customer list, customer lead, mail, printed matter or other
information secured from the Company or its present or past employees
or (iii) in any other manner use any customer lists or customer leads,
mail, telephone numbers, printed material or other information of the
Company relating thereto.
11.3 (a) If this Agreement is terminated either by the Executive for
Good Reason or by the Company Without Cause, provided that no Change in
Control of the Company has occurred during the two-year period preceding or
within the one-year period following the Date of Termination then, for a
period of one (1) year following the Date of Termination, the Executive
shall not, acting alone or in conjunction with others, directly or
indirectly, engage, participate, invest, accept employment, or render
services as a principal, director, officer, agent, employee, employer,
consultant, or in any other individual or representative capacity in or
with any business which competes, directly or indirectly, with the
Employer's business and which is located in any of the business territories
in which the Company or any of its Affiliates is presently or at the Date
of Termination conducting business, or take any action inconsistent with
the fiduciary relationship of an employee to his employer; provided,
however, that the beneficial ownership by the Executive of up to three (3)
percent of the Voting Stock of any corporation subject to the periodic
reporting requirements of the Exchange Act shall not violate this Section
11.3(a).
13
(b) In addition to the other obligations agreed to by the
Executive in this Agreement, the Executive agrees that if this
Agreement is terminated either by the Executive for Good Reason or by
the Company Without Cause, provided that no Change in Control of the
Company has occurred during the two-year period preceding or within
the one-year period following the Date of Termination, then for a
period of one (1) year following the Date of Termination, he shall
not, directly or indirectly, (i) induce, entice or solicit any
employee of the Company to leave his employment, (ii) contact,
communicate or solicit any customer or acquisition prospect of the
Company derived from any customer list, customer lead, mail, printed
matter or other information secured from the Company or its present or
past employees or (iii) in any other manner use any customer lists or
customer leads, mail, telephone numbers, printed material or other
information of the Company relating thereto.
11.4 If this Agreement is terminated (a) either by the Executive for
Good Reason or by the Company Without Cause and (b) a Change in Control of
the Company has occurred during the two-year period preceding, or the
one-year period following, the Date of Termination, or if this Agreement is
terminated, as a result of the Executive's Disability, then the Executive
shall not be subject to any obligations under this Section 11.
12. Miscellaneous.
12.1 Notices. All notices and other communications required or
permitted hereunder or necessary or convenient in connection herewith shall
be in writing and shall be deemed to have been given when delivered by hand
or mailed by registered or certified mail, return receipt requested, as
follows (provided that notice of a change of address shall be deemed given
only when received):
If to the Company:
Allied Waste Industries, Inc.
00000 Xxxxx Xxxxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
If to the Executive:
Xxxxxx X. Xxxx
000 Xxxx Xxxx Xxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
or to such other names or addresses as the Company or the Executive, as the case
may be, shall designate by notice to the other party hereto in the manner
specified in this Section 12.1.
14
12.2 Waiver of Breach. The waiver by any party hereto of a breach of
any provision of this Agreement shall neither operate nor be construed as a
waiver of any subsequent breach by any party.
12.3 Assignment. This Agreement shall be binding upon and inure to the
benefit of the Company, its successors, legal representatives and assigns,
and upon the Executive, his heirs, executors, administrators, legal
representatives and assigns; provided, however, the Executive agrees that
his rights and obligations hereunder are personal to him and may not be
assigned without the express written consent of the Company.
12.4 Entire Agreement, No Oral Amendments. This Agreement, together
with any schedule or exhibit attached hereto and any document, policy, rule
or regulation referred to herein, replaces and merges all previous
agreements and discussions relating to the same or similar subject matter
between the Executive and the Company and constitutes the entire agreement
between the Executive and the Company with respect to the subject matter of
this Agreement. This Agreement may not be modified in any respect by any
verbal statement, representation or agreement made by any employee,
officer, or representative of the Company or by any written agreement
unless signed by an officer of the Company who is expressly authorized by
the Company to execute such document.
12.5 Enforceability. If any provision of this Agreement or application
thereof to anyone or under any circumstances shall be determined to be
invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provisions or applications of this Agreement which can be
given effect without the invalid or unenforceable provision or application.
12.6 Jurisdiction, Venue. The laws of the State of Arizona shall
govern the interpretation, validity and effect of this Agreement without
regard to the place of execution or the place for performance thereof, and
the Company and the Executive agree that the courts situated in Maricopa
County, Arizona shall have personal jurisdiction over the Company and the
Executive to hear all disputes arising under this Agreement. This Agreement
is to be at least partially performed in Maricopa County, Arizona, and as
such, the Company and the Executive agree that venue shall be proper with
the courts in Maricopa County, Arizona to hear such disputes. In the event
either the Company or the Executive is not able to effect service of
process upon the other party hereto with respect to such disputes, the
Company and the Executive expressly agree that the Secretary of State for
the State of Arizona shall be an agent of the Company and/or the Executive
to receive service of process on behalf of the Company and/or the Executive
with respect to such disputes.
12.7 Injunctive Relief. The Company and the Executive agree that a
breach of any term of this Agreement by the Executive would cause
irreparable damage to the Company and that, in the event of such breach,
the Company shall have, in addition to any and all remedies of law, the
right to any injunction, specific performance and other equitable relief to
prevent or to redress the violation of the Executive's duties or
responsibilities hereunder.
IN WITNESS WHEREOF, the undersigned, intending to be early
bound, have executed this Agreement as of the date first written above.
15
ALLIED WASTE INDUSTRIES, INC.
By /s/ XXXXXX X. XXX XXXXXXX
----------------------------------------------------
Xxxxxx X. Xxx Xxxxxxx
Its CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
----------------------------------------------------
"Company"
/s/ XXXXXX X. XXXX
------------------------------------------------------
Xxxxxx X. Xxxx
"Executive"
