<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q/A
(Amendment No. 1)
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1995
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ___ to ___
Commission File Number: 1-12154
_____________
USA WASTE SERVICES, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
Delaware 73-1309529
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
</TABLE>
5000 Quorum Drive,
Suite 300
Dallas, Texas 75240
(Address of principal executive offices)
(214) 383-7900
(Registrant's telephone number, including area code)
No Change
(Former name, former address, and former fiscal year, if
changed since last report)
____________
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
--- ---
Indicate the number of shares outstanding of each of the issuer's
classes of common stock as of August 11, 1995:
Common Stock $.01 par value 52,291,638 shares
<PAGE> 2
ITEM 6 - EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits.
3.1 - Restated Certificate of Incorporation [Incorporated by
Reference to Exhibit 3.1 of the Registrant's Registration
Statement on Form S-4, File No. 33-60103].
3.2 - Bylaws [Incorporated by Reference to Exhibit 3.2 of the
Registrant's Registration Statement on Form S- 4, File No.
33-60103].
4.1 - Indenture dated September 25, 1992, between the Registrant
and The First National Bank of Boston, as Trustee, with
respect to the Registrant's 8 1/2% Convertible Subordinated
Debentures Due 2002 [Incorporated by reference to Exhibit 4.1
of the Registrant's Registration Statement on Form S-1, File
No. 33-50918].
4.2 - Specimen Stock Certificate [Incorporated by reference to
Exhibit 4.3 of the Registrant's Registration Statement on
Form S-3, File No. 33-76224].
*4.3 - Agreement by Registrant to file agreements omitted pursuant
to Regulation S-K, Item 601(b)(4)(iii)(A).
10.1 - 1990 Stock Option Plan [Incorporated by reference to Exhibit
10.1 of the Registrant's Annual Report on Form 10-K for the
year ended December 31, 1990].
10.2 - 1993 Stock Incentive Plan [Incorporated by reference to
Exhibit 4.4 of the Registrants Registration Statement on Form
S-8, File No. 33-72436].
10.3 - Envirofil, Inc. 1993 Stock Incentive Plan [Incorporated by
reference to Exhibit 10.3 of the Registrant's Annual Report
on Form 10-K for the year ended December 31, 1994].
10.4 - Asset Purchase Agreement dated August 12, 1993, between
Chambers of Indiana, Inc. and USA Waste of Indiana, Inc.
[Incorporated by reference to Exhibit 2.2 to Registrant's
Current Report on Form 8-K dated September 30, 1993].
10.5 - Stock Purchase Agreement dated August 12, 1993, between
Chambers Development Company, Inc. and USA Waste of Indiana,
Inc. [Incorporated by reference to Exhibit 2.1 to
Registrant's Current Report on Form 8-K dated September 30,
1993].
10.6 - Agreement of Merger dated as of September 29, 1993, among USA
Waste Services, Inc., USA Acquisition Co., Soil Remediation
of Philadelphia, Inc. and Louis D. Paolino, Jr. [Incorporated
by reference to Exhibit 2.3 to Registrant's Current Report on
Form 8-K dated September 30, 1993].
<PAGE> 3
10.7 - Agreement and Plan of Reorganization dated as of March 17,
1993, as amended on March 25, 1993, March 31, 1993, and
August 20, 1993, between Envirofil, Inc. and Environmental
Waste of America, Inc. [Incorporated by reference to Exhibit
(c)(i) to Envirofil's Current Report on Form 8-K filed on
November 16, 1993, as amended by a Current Report in Form
8-K/A filed on January 18, 1994].
10.8 - Stock Purchase Agreement dated March 15, 1993, between
Environmental Waste of America, Inc. and Donald G. Lindgren,
as amended and assigned to Envirofil, Inc. as of November 5,
1993. [Incorporated by reference to Exhibit (c)(i) to
Envirofil's Current Report on Form 8-K filed on November 16,
1993, as amended by a Current Report in Form 8-K/A filed on
January 18, 1994].
10.9 - Stock Purchase Agreement dated March 19, 1993, among
Envirofil, Inc., Meadowbrook Carting Co., Inc., and certain
shareholders of Meadowbrook Carting Co., Inc. [Incorporated
by reference to Exhibit (c)(ii) to Envirofil's Current Report
on Form 8-K filed February 28, 1994, as amended by Current
Report on Form 8-K/A filed on May 11, 1994].
10.10- Stock Purchase Agreement dated March 19, 1993, among
Envirofil, Inc., Mid-Jersey Disposal, Co., Inc., and certain
shareholders of Mid-Jersey Disposal Co., Inc. [Incorporated
by reference to Exhibit (c)(ii) to Envirofil's Current Report
on Form 8-K filed February 28, 1994, as amended by Current
Report on Form 8-K/A filed on May 11, 1994].
10.11- Stock Purchase Agreement dated March 19, 1993, among
Envirofil, Inc., Quality Recycling Co, Inc., and certain
shareholders of Quality Recycling Co., Inc. [Incorporated by
reference to Exhibit (c)(iii) to Envirofil's Current Report
on Form 8-K filed February 28, 1994, as amended by Current
Report on Form 8-K/A filed on May 11, 1994].
10.12- Stock Purchase Agreement dated March 19, 1993, among
Envirofil, Inc., Forcees, Inc., and certain shareholders of
Forcees, Inc. [Incorporated by reference to Exhibit (c)(iv)
to Envirofil's Current Report on Form 8-K filed February 28,
1994, as amended by Current Report on Form 8-K/A filed on May
11, 1994].
10.13- Amended and Restated Plan and Agreement of Reorganization
dated March 29, 1994, among the Registrant, Envirofil
Acquisition Corporation, a Delaware corporation and wholly
owned subsidiary of the Registrant, and Envirofil, Inc., a
Delaware corporation [Incorporated by reference to Exhibit
2.1 to the Registrant's Statement on Form S-4 (File No.
33-77110].
3
<PAGE> 4
10.14- Amended and Restated Agreement and Plan of Merger dated as of
November 28, 1994, among the Registrant, Chambers Acquisition
Corporation, a Delaware corporation and wholly owned
subsidiary of the Registrant, and Chambers Development
Company, Inc., a Delaware corporation [Incorporated by
reference to Exhibit 2.1 of the Registrant's Statement on
Form S-4 (File No. 33-59259].
10.15- Form of Employment Agreement between the Registrant and each
of John E. Drury, Donald F. Moorehead, Jr., David
Sutherland-Yoest, and Charles A. Wilcox [Incorporated by
reference to Exhibit 10.18 of the Registrant's Annual Report
on Form 10-K for the year ended December 31, 1994].
10.16- Employment Agreement between the Registrant and Earl E.
DeFrates [Incorporated by reference to Exhibit 10.19 of the
Registrant's Annual Report on Form 10-K for the year ended
December 31, 1994].
10.17- Employment Agreement between the Registrant and Gregory T.
Sangalis [Incorporated by reference to Exhibit 10.17 to the
Registrant's Registration Statement on Form S-4, File No.
33-59259].
10.18- Amendment to Amended and Restated Agreement and Plan of
Merger dated June 27, 1995, among the Registrant, Chambers
Acquisition Corporation, and Chambers Development Company,
Inc. [Incorporated by reference to Exhibit 2.2 to the
Registrant's Current Report on Form 8-K dated June 30, 1995].
10.19- Revolving Credit and Term Loan Agreement dated as of June 30,
1995, among the Registrant, its subsidiaries, The First
National Bank of Boston, Bank of America Illinois, J.P.
Morgan Securities Inc., and Morgan Guaranty Trust Company of
New York.
* 10.20- Shareholders Agreement dated June 25, 1995, among USA Waste
Services, Inc., Donald F. Moorehead, Jr., John E. Drury, John
G. Rangos, Sr., John G. Rangos, Jr., Alexander W. Rangos, and
John Rangos Development Corporation, inc.
* 10.21- Consulting and Non-Compete Agreement dated June 25, 1995,
between the Registrant and John G. Rangos, Sr.
* 10.22- Employment Agreement dated June 25, 1995, between the
Registrant and Alexander W. Rangos.
27.1 - Financial Data Schedule.
___________________________
* Filed herewith.
(b) Reports of Form 8-K.
4
<PAGE> 5
The Company filed a Current Report on Form 8-K dated June 30, 1995.
Such Current Report reported on Item 1. Changes in Control of Registrant, Item
2. Acquisition or Disposition of Assets, and Item 7. Financial Statements and
Exhibits. The financial statements filed included Supplemental Consolidated
Financial Statements of the Company at December 31, 1994, and for the three
years ended December 31, 1994, and Supplemental Condensed Consolidated
Financial Statements at March 31, 1995, and for the three months ended March
31, 1995.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
USA WASTE SERVICES, INC.
Registrant
September 29, 1995 By: /s/ EARL E. DEFRATES
----------------------------
Earl E. DeFrates,
Executive Vice President
Chief Financial Officer
September 29, 1995 By: /s/ BRUCE E. SNYDER
----------------------------
Bruce E. Snyder,
Vice President - Controller,
Chief Accounting Officer
5
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
3.1 - Restated Certificate of Incorporation [Incorporated by
Reference to Exhibit 3.1 of the Registrant's Registration
Statement on Form S-4, File No. 33-60103].
3.2 - Bylaws [Incorporated by Reference to Exhibit 3.2 of the
Registrant's Registration Statement on Form S- 4, File No.
33-60103].
4.1 - Indenture dated September 25, 1992, between the Registrant
and The First National Bank of Boston, as Trustee, with
respect to the Registrant's 8 1/2% Convertible Subordinated
Debentures Due 2002 [Incorporated by reference to Exhibit 4.1
of the Registrant's Registration Statement on Form S-1, File
No. 33-50918].
4.2 - Specimen Stock Certificate [Incorporated by reference to
Exhibit 4.3 of the Registrant's Registration Statement on
Form S-3, File No. 33-76224].
*4.3 - Agreement by Registrant to file agreements omitted pursuant
to Regulation S-K, Item 601(b)(4)(iii)(A).
10.1 - 1990 Stock Option Plan [Incorporated by reference to Exhibit
10.1 of the Registrant's Annual Report on Form 10-K for the
year ended December 31, 1990].
10.2 - 1993 Stock Incentive Plan [Incorporated by reference to
Exhibit 4.4 of the Registrants Registration Statement on Form
S-8, File No. 33-72436].
10.3 - Envirofil, Inc. 1993 Stock Incentive Plan [Incorporated by
reference to Exhibit 10.3 of the Registrant's Annual Report
on Form 10-K for the year ended December 31, 1994].
10.4 - Asset Purchase Agreement dated August 12, 1993, between
Chambers of Indiana, Inc. and USA Waste of Indiana, Inc.
[Incorporated by reference to Exhibit 2.2 to Registrant's
Current Report on Form 8-K dated September 30, 1993].
10.5 - Stock Purchase Agreement dated August 12, 1993, between
Chambers Development Company, Inc. and USA Waste of Indiana,
Inc. [Incorporated by reference to Exhibit 2.1 to
Registrant's Current Report on Form 8-K dated September 30,
1993].
10.6 - Agreement of Merger dated as of September 29, 1993, among USA
Waste Services, Inc., USA Acquisition Co., Soil Remediation
of Philadelphia, Inc. and Louis D. Paolino, Jr. [Incorporated
by reference to Exhibit 2.3 to Registrant's Current Report on
Form 8-K dated September 30, 1993].
10.7 - Agreement and Plan of Reorganization dated as of March 17,
1993, as amended on March 25, 1993, March 31, 1993, and
August 20, 1993, between Envirofil, Inc. and Environmental
Waste of America, Inc. [Incorporated by reference to Exhibit
(c)(i) to Envirofil's Current Report on Form 8-K filed on
November 16, 1993, as amended by a Current Report in Form
8-K/A filed on January 18, 1994].
10.8 - Stock Purchase Agreement dated March 15, 1993, between
Environmental Waste of America, Inc. and Donald G. Lindgren,
as amended and assigned to Envirofil, Inc. as of November 5,
1993. [Incorporated by reference to Exhibit (c)(i) to
Envirofil's Current Report on Form 8-K filed on November 16,
1993, as amended by a Current Report in Form 8-K/A filed on
January 18, 1994].
10.9 - Stock Purchase Agreement dated March 19, 1993, among
Envirofil, Inc., Meadowbrook Carting Co., Inc., and certain
shareholders of Meadowbrook Carting Co., Inc. [Incorporated
by reference to Exhibit (c)(ii) to Envirofil's Current Report
on Form 8-K filed February 28, 1994, as amended by Current
Report on Form 8-K/A filed on May 11, 1994].
10.10- Stock Purchase Agreement dated March 19, 1993, among
Envirofil, Inc., Mid-Jersey Disposal, Co., Inc., and certain
shareholders of Mid-Jersey Disposal Co., Inc. [Incorporated
by reference to Exhibit (c)(ii) to Envirofil's Current Report
on Form 8-K filed February 28, 1994, as amended by Current
Report on Form 8-K/A filed on May 11, 1994].
10.11- Stock Purchase Agreement dated March 19, 1993, among
Envirofil, Inc., Quality Recycling Co, Inc., and certain
shareholders of Quality Recycling Co., Inc. [Incorporated by
reference to Exhibit (c)(iii) to Envirofil's Current Report
on Form 8-K filed February 28, 1994, as amended by Current
Report on Form 8-K/A filed on May 11, 1994].
10.12- Stock Purchase Agreement dated March 19, 1993, among
Envirofil, Inc., Forcees, Inc., and certain shareholders of
Forcees, Inc. [Incorporated by reference to Exhibit (c)(iv)
to Envirofil's Current Report on Form 8-K filed February 28,
1994, as amended by Current Report on Form 8-K/A filed on May
11, 1994].
10.13- Amended and Restated Plan and Agreement of Reorganization
dated March 29, 1994, among the Registrant, Envirofil
Acquisition Corporation, a Delaware corporation and wholly
owned subsidiary of the Registrant, and Envirofil, Inc., a
Delaware corporation [Incorporated by reference to Exhibit
2.1 to the Registrant's Statement on Form S-4 (File No.
33-77110].
10.14- Amended and Restated Agreement and Plan of Merger dated as of
November 28, 1994, among the Registrant, Chambers Acquisition
Corporation, a Delaware corporation and wholly owned
subsidiary of the Registrant, and Chambers Development
Company, Inc., a Delaware corporation [Incorporated by
reference to Exhibit 2.1 of the Registrant's Statement on
Form S-4 (File No. 33-59259].
10.15- Form of Employment Agreement between the Registrant and each
of John E. Drury, Donald F. Moorehead, Jr., David
Sutherland-Yoest, and Charles A. Wilcox [Incorporated by
reference to Exhibit 10.18 of the Registrant's Annual Report
on Form 10-K for the year ended December 31, 1994].
10.16- Employment Agreement between the Registrant and Earl E.
DeFrates [Incorporated by reference to Exhibit 10.19 of the
Registrant's Annual Report on Form 10-K for the year ended
December 31, 1994].
10.17- Employment Agreement between the Registrant and Gregory T.
Sangalis [Incorporated by reference to Exhibit 10.17 to the
Registrant's Registration Statement on Form S-4, File No.
33-59259].
10.18- Amendment to Amended and Restated Agreement and Plan of
Merger dated June 27, 1995, among the Registrant, Chambers
Acquisition Corporation, and Chambers Development Company,
Inc. [Incorporated by reference to Exhibit 2.2 to the
Registrant's Current Report on Form 8-K dated June 30, 1995].
10.19- Revolving Credit and Term Loan Agreement dated as of June 30,
1995, among the Registrant, its subsidiaries, The First
National Bank of Boston, Bank of America Illinois, J.P.
Morgan Securities Inc., and Morgan Guaranty Trust Company of
New York.
* 10.20- Shareholders Agreement dated June 25, 1995, among USA Waste
Services, Inc., Donald F. Moorehead, Jr., John E. Drury, John
G. Rangos, Sr., John G. Rangos, Jr., Alexander W. Rangos, and
John Rangos Development Corporation, inc.
* 10.21- Consulting and Non-Compete Agreement dated June 25, 1995,
between the Registrant and John G. Rangos, Sr.
* 10.22- Employment Agreement dated June 25, 1995, between the
Registrant and Alexander W. Rangos.
27.1 - Financial Data Schedule.
</TABLE>
___________________________
* Filed herewith.
<PAGE> 1
Exhibit 4.3
The Registrant agrees to furnish to the Commission upon request with a
copy of the following agreements each of which has been omitted pursuant to the
provisions of Regulation S-k, Item 601(b)(4)(iii)(A) and which defines the
rights of holders of long-term debt of a subsidiary of the Registrant the
amount of which does not exceed 10% of the total assets of the Registrant and
its subsidiaries on a consolidated basis:
(a) Agreement of Sale dated as of November 1, 1989, between
Industrial Development Authority of the County of Charles
City and Chambers Development of Virginia, Inc.; Guaranty
Agreement dated as of November 1, 1989, by and among Chambers
Development Company, Inc. and Sovran Bank, N.A., as Trustee.
(b) First Supplemental Agreement of Sale Dated March 1, 1990,
between Industrial Development Authority of the County of
Charles City and Chambers Development of Virginia, Inc.
(c) Loan Agreement dated November 1, 1991, between Industrial
Development Authority of the County of Charles City and
Chambers Development of Virginia, Inc.
(d) Loan Agreement dated December 1, 1990, between South Carolina
Jobs-Economic Development Authority and Chambers Oakridge
Landfill, Inc.
(e) Agreement of Sale dated as of December 1, 1991, between
Industrial Development Authority of Amelia County, Virginia
and Chambers Waste Systems of Virginia, Inc.
(f) Loan Agreement dated March 1, 1992, between Okeechobee
County, Florida and Chambers Waste Systems of Florida, Inc.
(g) Indenture between Allegheny County Industrial Development
Authority and Pittsburgh National Bank, as Trustee, and
agreed to by John G. Rangos, Sr., Alexander W. Rangos and
John G. Rangos, Jr., individuals trading as Synergy
Associates, dated as of November 1, 1985; and Guaranty and
Suretyship Agreement of William H. Martin, Inc., U.S.
Services Corporation, Chambers of Georgia, Inc., Chambers of
South Carolina, Inc., Carrier Engineering, Inc., Security
Bureau, Inc., Sandman Waste Management, Inc., Chambers
Development Company, Inc., John G. Rangos, Sr., John G.
Rangos, Jr. and Alexander W. Rangos, dated as of November 1,
1985.
<PAGE> 1
Exhibit 10.20
Shareholders Agreement
This Shareholders Agreement (the "Agreement") is entered into
this 30th day of June, 1995, between USA Waste Services, Inc., a Delaware
corporation (the "Company"); Donald F. Moorehead, Jr. and John E. Drury (Donald
F. Moorehead, Jr., and John E. Drury are referred to collectively herein as
the "Company Stockholders"); John G. Rangos, Jr. and Alexander W. Rangos (John
G. Rangos, Sr., John G. Rangos, Jr. and Alexander W. Rangos are referred to
collectively herein as the "Rangos Family Members") and John Rangos Development
Corporation, Inc. (together with the Rangos Family Members, the "Rangos
Shareholders").
RECITALS
The Company, Chambers Acquisition Corporation, a Delaware
corporation and a wholly owned subsidiary of the Company (the "Subsidiary"),
and Chambers Development Company, Inc., a Delaware corporation ("Chambers"),
have entered into an Agreement and Plan of Merger dated as of November 28, 1994
(the "Merger Agreement"), pursuant to which the Subsidiary is merging with and
into Chambers, with Chambers remaining as the surviving corporation and a
wholly- owned subsidiary of the Company (the "Merger").
The Company Stockholders are stockholders and directors of
the Company.
Prior to the Effective Time (as defined in the Merger
Agreement), the Rangos Shareholders have been stockholders and the Rangos
Family Members have been officers and directors of Chambers.
After and as a result of the Merger, the Rangos Shareholders
are expected to own, in the aggregate, approximately 21% of the issued and
outstanding shares of common stock, par value $.01 per share (the "Common
Stock"), of the Company.
Pursuant to a Rangos Family Master Agreement dated as of the
date of the Merger Agreement among the Rangos Family Members, the Company
Stockholders and the Company (the "Master Agreement") and entered into as a
condition to the Rangos Family Members agreeing to vote their shares of
Chambers in favor of the Merger, the Company, the Company Stockholders and the
Rangos Family Members agreed to enter into an agreement providing the Rangos
Shareholders certain rights to name or participate in the naming of members to
the Board of Directors of the Company, to name certain members to the Executive
Committee of the Board of Directors of the Company, and to require certain
matters to be approved by a two-thirds vote of the Board of Directors of the
Company.
In consideration of the foregoing and the respective
covenants and agreements set forth in this Agreement, the Company, the Company
Stockholders and the Rangos Shareholders agree as follows:
<PAGE> 2
SECTION 1 TERM.
The term (the "Term") of this Agreement shall commence at the
Effective Time and continue until such time as the aggregate number of shares
of Common Stock beneficially held by the Rangos Shareholders and their
affiliates (as defined below) is less than five percent (5%) of the issued and
outstanding shares of Common Stock. For the purpose of calculating the
percentage of shares of Common Stock held by the Rangos Shareholders and their
affiliates, all shares that the Rangos Shareholders may acquire upon the
exercise or conversion of options, warrants, rights of conversion or other
rights to acquire shares (whether or not exercisable at the time of such
determination) shall be included in the number of shares held by the Rangos
Shareholders and their affiliates and the number of shares issued and
outstanding, but shares that may be acquired by other persons pursuant to such
rights shall not be included in the number of shares issued and outstanding.
For the purposes of this Agreement, an "affiliate" of a person includes (i) if
such person is a natural person, such person's spouse, parents, children,
siblings, mothers and fathers-in-law, sons and daughters-in-law and brothers
and sisters-in-law, any trusts established solely for the benefit of any of the
foregoing and (ii) any partnership, corporation, joint venture, association or
other entity owned and controlled solely by the Rangos Shareholders and any
persons included within the preceding clause(i).
SECTION 2 BOARD OF DIRECTORS.
(a) The Company, the Company Stockholders and the Rangos
Shareholders agree that they shall use their best efforts to cause the Board of
Directors of the Company immediately after the Effective Time to be increased
from eight to nine members and, at all times during the Term of this Agreement,
to cause the Board of Directors to consist of no more than nine members, except
as otherwise may be required pursuant to governing instruments of securities
issued by the Company.
(b) Immediately after the Effective Time, the Company and
the Company Stockholders shall use their best efforts to cause John G. Rangos,
Sr. and Alexander W. Rangos to be appointed as directors to fill the vacancies
created as a result of increasing the size of the Board of Directors. During
the Term of this Agreement, the Company and the Company Stockholders shall use
their best efforts to cause the Board of Directors to include at all times two
persons who are designated by the Rangos Shareholders. The initial designees
of the Rangos Shareholders shall be John G. Rangos, Sr. and Alexander W.
Rangos. If the designees of the Rangos Shareholders are other than John
Rangos, Sr., John Rangos, Jr. or Alexander Rangos, such designees must be
reasonably acceptable to the Company. The Company shall, no later than thirty
days prior to the mailing of any proxy or information statement with respect to
a stockholder meeting at which directors are to be elected, notify the Rangos
Shareholders of the date of such mailing; the Rangos Shareholders shall notify
the Company of the names of the persons they designate to serve on the Board of
Directors of the Company pursuant to this Section no later than ten days prior
to the date of such mailing; and the Company and the Company Stockholders shall
use their best efforts to have such designees nominated for election as
directors and elected as directors. The Rangos Shareholders shall notify the
Company of the name of any person they designate to fill a vacancy on the Board
of Directors resulting from the resignation or other removal of a person
previously designated by the Rangos Shareholders no
2
<PAGE> 3
later than thirty days after such vacancy is created, and the Company and the
Company Stockholders shall use their best efforts to cause the Board of
Directors to appoint such person as a director of the Company. For purposes of
this Section, the Company may rely on a notice from John G. Rangos, Sr. as a
notification from the Rangos Shareholders, or on a notice from such other
person as is designated in a writing signed by all Rangos Shareholders.
(c) During the Term of this Agreement, the Company, the
Company Stockholders and the Rangos Shareholders shall use their best efforts
to cause the Board of Directors to include at all times (in addition to the two
persons who are members pursuant to Section 2(b)) four persons who are approved
by at least four members of the Executive Committee of the Board of Directors
of the Company and none of whom is an officer or employee of the Company.
(d) During the term of this Agreement, and subject to the
provisions of clauses (b) and (c) of this Section 2, the Rangos Shareholders
and the Company Stockholders agree to use their best efforts to cause (i) the
election (and re-election during the term of this Agreement) of the individuals
who constitute the initial Board of Directors immediately following the
Effective Time (the "Initial Directors"), and (ii) the selection of and
election of persons nominated (consistent with the provisions of Section 2(c)
above) by a majority of the Initial Directors to fill any vacancies on the
Board of Directors created by the resignation or removal of a designee of the
Rangos Shareholders); provided that any person becoming a director subsequent
to the date hereof whose election, or nomination for election was approved
consistent with the provisions of Section 2(c) above), by a vote of a majority
of the Initial Directors shall be for purposes of this Section 2(d) considered
as though such person were an Initial Director.
SECTION 3 EXECUTIVE COMMITTEE OF THE BOARD OF DIRECTORS OF THE
COMPANY.
(a) The Company and the Company Stockholders agree that
at all times during the Term of this Agreement they shall use their best
efforts to establish and maintain an Executive Committee of the Board of
Directors consisting of five (5) directors.
(b) The Company and the Company Stockholders agree that
at all times during the Term of this Agreement they shall use their best
efforts to cause the Executive Committee of the Board of Directors to include
the two persons designated by the Rangos Shareholders pursuant to Section (b)
of this Agreement.
SECTION 4 APPROVAL OF CERTAIN ACTIONS.
The Company and the Company Stockholders agree to use their
best efforts to cause the Company to amend its by-laws to provide that the
Company shall not, and shall not permit any of its subsidiaries to, take any of
the following actions unless such action has been approved by the affirmative
vote of at least two-thirds (2/3) of the members of the Board of Directors of
the Company.
(1) Approve or enter into any merger of the Company with
or into another entity, or any merger of any other
entity with or into the Company (other than a merger
with a wholly-owned subsidiary of the Company) if
such
3
<PAGE> 4
entity has assets having a fair market value (as
determined in good faith by the Board of Directors)
of more than $5,000,000;
(2) Approve or enter into any transaction or series of
related transactions involving the sale or other
transfer of all or substantially all of the assets of
the Company;
(3) Approve the issuance of or issue any shares of, or
rights to acquire shares of, the capital stock of the
Company (other than pursuant to previously approved
employee benefit plans or employee benefit plans
consistent with customary practice in the industry);
(4) Approve or enter into any transaction as a result of
which the Company would acquire, directly or through
a subsidiary of the Company, assets (whether by
purchase, merger or consolidation) for more than
$5,000,000 in consideration (whether the
consideration is in the form of cash, assets or
securities) to be paid, transferred or issued by or
on behalf of the Company or any subsidiary of the
Company;
(5) Approve or enter into any transaction as a result of
which the Company or any subsidiary of the Company
would dispose of assets having a fir market value (as
determined in good faith by the Board of Directors)
of more than $1,000,000;
(6) Approve any amendment to the Certificate of
Incorporation or Bylaws of the Company;
(7) Approve or enter into any transaction as a result of
which the Company or any subsidiary of the Company
would incur indebtedness for borrowed money in excess
of $5,000,000;
(8) Approve or enter into any transaction in which the
Company or any subsidiary of the Company would enter
into a lease of real or personal property involving
annual payments in excess of $1,000,000; or
(9) Approve or substantially modify annual operating and
capital budgets of the Company.
The Company and the Company Stockholders shall use their best efforts to cause
such by-law amendment to be in effect during the Term of this Agreement.
SECTION 5 NOTICE.
All notices called for under this Agreement must be in
writing and will be deemed given if:
(1) delivered personally;
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(2) delivered by facsimile transmission and receipt is
acknowledged verbally or electronically;
(3) telexed; or
(4) mailed by registered or certified mail (return
receipt requested), postage prepaid;
to the parties to this Agreement at the following addresses (or at such other
address for a party as is specified by like notice; provided that notices of a
change of address will be effective only upon receipt of the notice):
To the Company:
USA Waste Services, Inc.
5000 Quorum Drive, Suite 300
Dallas, Texas 75240
Attention: Earl E. DeFrates
To the Rangos Shareholders:
John G. Rangos, Jr.
4918 Route 910
Allison Park, Pennsylvania 15101
SECTION 6 SEVERABILITY.
If any provision of this Agreement is held invalid, such
invalidity will not affect any other provision of the Agreement that can be
given effect without the invalid provision, and to this end, the provisions of
this Agreement are separable.
SECTION 7 ASSIGNMENT.
This Agreement will bind and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but the
rights of the Rangos Shareholders may not be assigned to any person other than
affiliates of the Rangos Shareholders.
SECTION 8 AMENDMENT.
This Agreement may be modified only by a written instrument
duly executed by all parties to the Agreement and compliance with any provision
or condition contained in this Agreement, or the obtaining of any consent
provided for in this Agreement, may be waived only by written instrument duly
executed by the party to be bound by such waiver.
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SECTION 9 GOVERNING LAW.
The rights of the parties arising under this Agreement shall
be construed and enforced under the laws of the State of Delaware without
giving effect to any choice of law or conflict of law rules.
SECTION 10 COUNTERPARTS.
This Agreement may be executed in two or more counterparts,
each of which will be deemed an original but all of which will constitute one
and the same instrument.
SECTION 11 BEST EFFORTS OBLIGATIONS.
For purposes of this Agreement, the term "best efforts"
shall, (i) with respect to the Rangos Shareholders and the Company
Stockholders, require such persons to take all lawful action in their
capacities as members of the Board of Directors and with respect to the voting
of the shares of Common Stock held by such persons, and (ii) with respect to
the Rangos Shareholders, the Company Stockholders and the Company, require such
person to refrain from taking any action which could reasonably be expected to
frustrate the purposes intended to be accomplished by the best efforts
obligations provided herein.
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<PAGE> 7
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date set forth in the first paragraph of this Agreement.
USA Waste Services, Inc.
By: Earl E. DeFrates
-------------------------------------
Earl E. DeFrates
Executive Vice President
John G. Rangos, Sr.
-----------------------------------------
John G. Rangos, Sr.
John G. Rangos, Jr.
------------------------------------------
John G. Rangos, Jr.
Alexander W. Rangos
---------------------------------------
Alexander W. Rangos
John Rangos Development Corporation,
Inc.
By: John G. Rangos, Jr.
------------------------------------
Donald F. Moorehead, Jr.
---------------------------------------
Donald F. Moorehead, Jr.
John E. Drury
------------------------------------------
John E. Drury
7
<PAGE> 1
Exhibit 10.21
[Rangos, Sr.]
CONSULTING AND NON-COMPETE AGREEMENT
This Agreement is entered into this 30th day of June, 1995,
between USA Waste Services, Inc., a Delaware corporation (the "Company"), and
John G. Rangos, Sr. ("Rangos").
RECITALS
Rangos and certain members of his family are stockholders,
officers and directors of Chambers Development Company, Inc., a Delaware
corporation ("Chambers").
The company, Chambers Acquisition Corporation, a Delaware
corporation and a wholly owned subsidiary of the Company (the "Subsidiary"),
and Chambers have entered into an Agreement and Plan of Merger dated the 28th
day of November, 1994 (the "Merger Agreement"), pursuant to which the
Subsidiary will merge with and into Chambers, with Chambers remaining as the
surviving corporation and a wholly owned subsidiary of the Company (the
"Merger").
From and after the Effective Time (as defined in the Merger
Agreement), Rangos will terminate his employment with Chambers, and the Company
desires to retain Rangos thereafter as a consultant with respect to the
business of the Company on the terms set forth in this Agreement.
Rangos is willing to provide certain consulting services to
the Company on the terms set forth in this Agreement.
The Company desires to secure the promise of Rangos not to
compete with the Company and its Affiliates (as defined below) in the waste
collection, management, transfer, recycling and disposal business on the terms
set forth in this Agreement.
Rangos is willing to refrain from such competition with the
Company and its Affiliates on the terms set forth in this Agreement.
In consideration of the foregoing and the respective
covenants and agreements set forth in this Agreement, the Company and Rangos
agree as follows:
SECTION 1 CONSULTATION.
Commencing at the Effective Time and continuing for a period
of five years thereafter, the Company will engage Rangos as consultant for
waste collection, management, transfer, recycling and disposal matters only.
The duties of Rangos will be as follows: to be available upon reasonable
advance notice to advise the Company on matters affecting its waste collection,
management, and disposal business; and to advise the Company of any and all
waste business acquisition opportunities as to which Rangos or any of his
Affiliates shall become aware.
<PAGE> 2
As used in this Agreement, (i) an "Affiliate" of Rangos shall mean and include
any partnership, joint venture, corporation, trust, or unincorporated
organization directly or indirectly controlling, controlled by, or under common
control with Rangos, and (ii) an "Affiliate" of the Company shall mean any
corporation, partnership, joint venture, trust or unincorporated organization
directly or indirectly controlling, controlled by, or under common control with
the Company.
SECTION 2 COVENANT NOT TO COMPETE.
(a) Rangos recognizes that in each of the highly
competitive businesses in which the Company is engaged, personal contact is of
primary importance in securing new customers and in retaining the accounts and
goodwill of present customers and protecting the business of the Company.
Rangos, therefore, agrees that at all times during the period commencing at the
Effective Time and continuing for a period of five years thereafter, Rangos
will not:
(1) within the United States of America or within any
country where the Company conducts business that is
material to the Company, as owner, principal, agent,
partner, employee, director, consultant, distributor,
dealer, contractor, broker or trustee or through the
agency of any corporation, partnership, association
or agent or agency, engage directly or indirectly, in
any business of (i) rubbish, garbage, paper, textile
wastes, chemical or hazardous wastes, liquid and
other waste collection, interim storage, transfer,
handling, recovery, processing, treatment, recycling,
marketing or disposal, (ii) engineering or design,
construction, or operation of any plant, facility or
other structure having as its primary purpose the
mass- burning of solid or liquid waste with or
without any intended efforts to recover from such
wastes, energy, steam, ash, fly ash or other
constituents of the waste stream, regardless of
whether such constituents have any value, or (iii)
any other material business engaged in by the Company
or its Affiliates;
(2) be the owner of more than 1% of the outstanding
capital stock of any corporation whose securities are
listed on any national securities exchange or quoted
in any automated inter- dealer quotation system and
that is engaged in any of the businesses described in
paragraph above; or
(3) be an officer, director or employee of any
corporation (other than the Company or a subsidiary
of the Company), or a member or employee of any
partnership, or an owner, investor, stockholder
(except as permitted by Section 2(a)(2) above),
lender, agent, consultant, distributor, dealer,
contractor, broker or employee of any other business
which conducts a business described in paragraph
above.
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<PAGE> 3
(b) Rangos agrees that during the term of this Agreement,
he will not directly or indirectly (i) induce any customers of the Company or
any of its Affiliates to patronize any similar business which competes with any
material business of the Company; (ii) canvass, solicit or accept any similar
business which competes with any material business of the Company or any of its
Affiliates; (iii) directly or indirectly request or advise any customers of the
Company or any of its Affiliates to withdraw, curtail or cancel such customer's
business with the Company; or (iv) directly or indirectly disclose to any
other person, firm or corporation the names or addresses of any of the
customers of the Company or any of its Affiliates. Rangos further agrees that
he shall not engage in any pattern of conduct that involves the making or
publishing of written or oral statements or remarks (including, without
limitation, the repetition or distribution of derogatory rumors, allegations,
negative reports or comments which are disparaging, deleterious or damaging to
the integrity, reputation or goodwill of the Company, its management, or any of
its Affiliates.
(c) If the provisions of this Section 2 are violated, in
whole or in part, the Company shall be entitled, upon application to any court
of proper jurisdiction, to a temporary restraining order or preliminary
injunction (without the necessity of posting any bond with respect thereto) to
restrain and enjoin Rangos from such violations without prejudice to any other
remedies the Company may have at law or in equity. Further, in the event that
the provisions of this Section 2 should ever be deemed to exceed the time,
geographic or occupational limitations permitted by the applicable laws. The
provisions of this Section 2(c) shall survive the termination of this
Agreement. Nothing herein shall be construed as prohibiting the Company from
pursuing any other remedies available to it from such breach or threatened
breach, including the recovery of damages from Rangos.
SECTION 3 CONFIDENTIAL INFORMATION-INTELLECTUAL PROPERTY.
(a) Rangos recognizes and acknowledges that he has and
will continue to have access to various confidential or proprietary information
concerning the Company or any of its Affiliates of a special and unique value
which may include, without limitation, (i) books and records relating to
customers, operation, finance, accounting, sales, personnel and management,
(ii) policies and matters relating particularly to operations such as customer
lists, customer service requirements, costs of providing service and equipment,
operating costs and pricing matters, and (iii) various trade or business
secrets, including business opportunities, marketing or business
diversification plans, business development and bidding techniques, methods and
processes, know-how, financial data and the like (collectively, the "Protected
Information").
(b) Rangos agrees, therefore, that he will not at any
time during the term of this Agreement, knowingly make any independent use of,
or knowingly disclose to any other person or organization (except as expressly
authorized by the Company in writing), any of the Protected Information.
(c) In the event of a breach or threatened breach by
Rangos of the provisions of this Section 3, Rangos agrees that Company shall be
entitled to a temporary restraining order
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<PAGE> 4
or a preliminary injunction (without the necessity of the Company posting any
bond in connection therewith) restraining Rangos from using or disclosing, in
whole or part, such Protected Information. Nothing herein shall be construed
as prohibiting the Company from pursuing any other remedies available to it
from such breach or threatened breach, including the recovery of damages from
Rangos.
SECTION 4 CONSULTING AND NON-COMPETITION PAYMENTS.
(a) Terms. In consideration for the agreement of Rangos
set forth n Sections 1 and 2 of this Agreement, and subject to the terms and
conditions of this Section 4, the Company shall pay, or cause to be paid, to
Rangos payments of $450,000 per annum (the "Annual Rate") to be paid in equal
monthly installments (the "Monthly Payments"), which Annual Rate shall be
increased for each year during the term of the Agreement, commencing one year
following the Effective Time, by ten percent of the Annual Rate during the year
then ended. The first Monthly Payment shall be made the first day of the month
following the Effective Time (the "Payment Date") and be equal to an amount
obtained by multiplying one-twelfth of the Annual Rate by a fraction, the
numerator of which shall be the number of days in the month following the date
of the Effective Time and the numerator of which shall be 30.
(b) Assignment. Subject to Section 4(c), Rangos'
obligations and rights pursuant to this Section 4 shall not be assigned or
transferred in any way, including without limitation by operation of law,
without the written consent of the Company.
(c) Disability. In the event because of physical or
mental illness or personal injury Rangos shall be unable to perform his duties
hereunder, the Company shall continue to pay to Rangos the payments provided
for pursuant to this Section 4.
SECTION 5 OTHER BENEFITS.
(a) During the term of this Agreement, upon the
presentment of an itemized accounting of such expenses, the Company shall
reimburse Rangos in an amount not to exceed $150,000.00 annually for expenses
incurred by him in (i) obtaining office space in the Pittsburgh, Pennsylvania
metropolitan area, (ii) obtaining secretarial services and (iii) obtaining
security services.
(b) Rangos is authorized to incur reasonable business
expenses in connection with providing consulting services pursuant to this
Agreement, including expenses for meals, hotel and air travel, telephone,
automobile and similar items. The Company shall promptly reimburse Rangos for
such expenses upon the presentment of an itemized accounting of such expenses.
(c) Rangos shall be entitled to participate in the
Company's group life, medical and dental insurance plans and any stock option
or stock ownership plans applicable to directors or consultants.
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<PAGE> 5
SECTION 6 NOTICE.
(a) All notices called for under this Agreement must be
in writing and will be deemed given if:
(1) delivered personally;
(2) delivered by facsimile transmission and
receipt is acknowledged verbally or
electronically;
(3) telexed; or
(4) mailed by registered or certified mail
(return receipt requested), postage prepaid;
to the parties at the following addresses (or at such other address for a party
as is specified by like notice; provided that notices of a change of address
will be effective only upon receipt of the notice);
To the Company:
USA Waste Services, Inc.
5000 Quorum Drive, Suite 300
Dallas, Texas 75240
Attention: Earl DeFrates
To Rangos:
One Trimont Lane, 2200A
Pittsburgh, Pennsylvania 15211
SECTION 7 MISCELLANEOUS.
(a) In case any one or more of the provisions of this
Agreement shall, for any reason, be held or found by final judgment of a court
of competent jurisdiction to be invalid, illegal or unenforceable in any
respect (i) such invalidity, illegality or unenforceability shall not affect
any other provisions of this Agreement, and (ii) this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained herein (except that this subsection (ii) shall not prohibit any
modification allowed under Section 2 hereof). Failure to insist upon strict
compliance with any provision of this Agreement shall not be deemed a waiver of
such provision or of any other provision of this Agreement.
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<PAGE> 6
(b) No provisions of this Agreement may be amended,
modified or waived unless such amendment, modification or waiver shall be
agreed to in writing and signed by Rangos and by a person duly authorized by
the Board of Directors of the Company.
(c) No right to or interest in any compensation or
reimbursement payable hereunder shall be assignable or divisible by Rangos;
provided, however, that this provision shall not preclude Rangos from
designating one or more beneficiaries to receive any amount that may be payable
after his death and shall not preclude his executor or administrator from
assigning any right hereunder to the person or persons entitled thereto.
(d) The headings of sections and subsections hereof are
included solely for convenience and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
(e) This Agreement shall be construed in accordance with
and governed for all purposes by the laws of the State of Texas.
(f) This Agreement may not be assigned, partitioned,
subdivided, pledged, or hypothecated in whole or in part without the express
prior written consent of Rangos and the Company. This Agreement shall not be
terminated either by the voluntary or involuntary dissolution or the winding up
of the affairs of the Company, or by any merger or consolidation wherein the
Company is not surviving corporation, or by any transfer of all or
substantially all of the Company's assets on a consolidated basis. In the
event of any such merger, consolidation or transfer of assets, the provisions
of this Agreement shall be binding upon and shall inure to the benefit of the
surviving corporation or the corporation to which such assets shall be
transferred.
(g) If any amounts which are required or determined to be
paid or payable or reimbursed or reimbursable to Rangos under this Agreement
(or any other plan, agreement, policy or arrangement with the Company) are not
so paid promptly at the times provided herein or therein, such amounts shall
accrue interest compounded daily at the annual percentage rate which is three
percentage points (4%) above the interest rate which is announced by Citibank,
N.A., New York, New York, from time to time, as its Base Rate (or prime lending
rate), from the date such amounts were required or determined to have been paid
or payable or reimbursed or reimbursable to Rangos until such amounts and any
interest accrued thereon are finally paid; provided, however, that in no event
shall the amount of interest contracted for, charged or received hereunder
exceed the maximum non-usurious amount of interest allowed by applicable law.
(h) If at any time during the term of this Agreement or
afterwards there should arise any dispute as to the validity, interpretation or
application of any term or condition of this Agreement, the company agrees to
pay Rangos' reasonable attorneys' fees (including expenses of investigation)
incurred by Rangos in connection with any such dispute or litigation provided
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<PAGE> 7
that Rangos shall be the prevailing party. The provisions of this subparagraph
(h) shall survive the expiration or termination of this Agreement.
(i) The term of this Agreement shall commence on the date
hereof and continue until the fifth (5th) anniversary of the date hereof.
SECTION 8 CHANGE IN CONTROL.
(a) OPERATION OF SECTION 8. This Section 8 shall be
effective, but not operative, immediately upon execution of this Agreement by
the parties hereto and shall remain in effect during the term of this
Agreement, but shall not be operative unless and until there has been a Change
in Control, as defined in subparagraph (b) hereof. Upon such a Change in
Control, this Section 8 shall become operative immediately.
(b) DEFINITION. "Change in Control" shall mean a change
in control of the Company that shall be deemed to have occurred if and when,
with or without the approval of the Board of Directors of the Company incumbent
prior to the occurrence,
(1) more than 50% of the Company's outstanding
securities entitled to vote in elections of
directors shall be acquired by any person (as
such term is used in Section 13(d) and 14(d)
of the Securities Exchange Act of 1934, as
amended) other than by any person which
includes Rangos, or
(2) as the result of a tender offer, merger,
consolidation, sale of assets or contested
election, or any combination of such
transactions, the persons who were directors
of the Company immediately before the
transaction shall cease to constitute a
majority of the Board of Directors of the
Company or any successor to the Company.
(c) RANGOS' RIGHTS UPON CHANGE IN CONTROL. I, during the
term of this Agreement, a Change in Control (as defined in subsection (b)
above) occurs, Rangos may, in his sole discretion, within twelve (12) months
after the date of the Change in Control, give notice to the Secretary of the
Company that he intends to elect to elect to exercise his rights under Section
8 (the "Notice of Intention"). The right to give such Notice of Intention to
elect to receive the payment provided for in subparagraph (d) of this Section 8
shall continue for twelve (12) months from the date of the Change in Control.
Within thirty (30) days after the Company's receipt of the Notice of Intention,
the Company shall provide written notice to Rangos setting forth the Company's
computation of the amount that would be payable pursuant to Section 8(d),
accompanied by the written opinion of the Company's independent certified
public accountants confirming the Company's computation. If Rangos takes
exception to the Company's computation of such amount, Rangos may (but shall
not be prejudiced in his right to later contest the amount actually paid by
failure to do so) give a further written notice to the Company setting forth in
reasonable detail Rangos' exceptions to the Company's computation, accompanied
by the
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<PAGE> 8
written opinion of Rangos' tax advisor confirming the basis for such
exceptions. Exercise by Rangos of his rights pursuant to this Section 8 shall
only be made by giving further notice to the Secretary of the Company (the
"Notice of Exercise") within sixty (60) days after the Company provides the
computation of the amount payable as provided above.
(d) PAYMENT UPON CHANGE IN CONTROL.
(1) If Rangos gives the Notice of Exercise
described in Section 8(c) to the Company, the
Company shall pay Rangos a lump sum amount
equal to all payments that the Company would
be required to make to Rangos during the then
remaining term of this Agreement pursuant to
Sections 4 and 5 hereof. The Company shall,
within five (5) business days after the date
of the Notice of Exercise, deliver to Rangos
its cashier's check in the amount payable
pursuant to this Section 8(d)(1), and payment
of such amount shall terminate Rangos' rights
to receive any and all other payments, rights
or benefits arising pursuant to this
Agreement.
(2) Such lump sum payment shall be in addition to
and shall not be offset or reduced by (x) any
other amounts that have accrued or have
otherwise become payable to Rangos or his
beneficiaries, but have not been paid by the
Company at the time Rangos gives the Notice
of Exercise pursuant to this Section 8, and
(y) any indemnification payments that may
have accrued but not been paid or that may
thereafter become payable to Rangos pursuant
to the provisions of the Company's
Certificate of Incorporation, By- laws or
similar policy, plan or agreement relating to
the indemnification of directors or officers
of the Company under certain circumstance.s
(e) RELIEF FROM OBLIGATIONS. If Rangos gives the Notice
of Exercise described in Section 8(c) to the Company, Rangos shall in addition
to being entitled to receive the lump sum payment provided for in Section 8(d),
be relieved of his obligations under Sections 1 and 2 of this Agreement.
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<PAGE> 9
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date set forth in the first paragraph of this Agreement.
USA Waste Services, Inc.
By: Earl E. DeFrates
----------------------------------
Earl E. DeFrates
Executive Vice President
John G. Rangos, Sr.
--------------------------------------
John G. Rangos, Sr.
9
<PAGE> 1
Exhibit 10.22
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of
June , 1995, by and between USA WASTE SERVICES, INC., an Oklahoma corporation
(the "Company"), and ALEXANDER W. RANGOS ("Employee").
R E C I T A L S:
The Company recognizes that the efforts of its officers and key
management employees have contributed and will continue to contribute to the
growth and success of the Company.
The Company believes that, in the Company's best interest, it is
essential that its officers and key management employees, including the
Employee, be retained and that the Company be in a position to rely on their
ongoing dedication and commitment to render services to the Company.
The Company wishes to take steps to assure that the Company will
continue to have the Employee's services available to the Company by entering
into an agreement with the Employee concerning his employment by the Company.
In consideration of the foregoing, the mutual provisions contained
herein, and for other good and valuable consideration, the parties agree with
each other as follows:
1. EMPLOYMENT
A. The Company hereby employs the Employee and the Employee
hereby accepts employment as the Company's Executive Vice President for
Landfill Development on the terms and conditions hereinafter set forth. The
Employee shall perform such duties, and have such powers, authority, functions
and responsibilities for the Company and corporations affiliated with the
Company as are commensurate with such position, and have such additional
duties, powers, authority, functions and responsibilities as may be assigned to
him by the Company's Chief Executive Officer and the Board of Directors (and
not a committee thereof) which are not (except with the Employee's consent)
inconsistent with or which interfere with or detract from those commensurate
with such position.
B. The Employee shall not, during the term of his employment
under this Agreement, be engaged in any other activities if such activities
interfere materially with the Employee's duties, authority and responsibilities
for the Company, except for those other activities as shall hereafter be
carried on with the Company's consent. Notwithstanding the foregoing, the
Employee shall be entitled to carry on the activities of making and managing
his personal investments provided such investments or other activities do not
violate in any material respect the terms of Sections 6, 7 or 8 hereof.
<PAGE> 2
2. TERM
A. Subject only to the provision of either Section 3(D) or
Section 4 hereof, the term of the Employee's employment under this Agreement
shall be for a continually renewing term of five (5) years without any further
action by either the Company or the Employee, it being the intention of the
parties that there shall be continuously a term of five (5) years duration of
the Employee's Employment under this Agreement until an event has occurred as
described in, or one of the parties shall have made an election pursuant to,
the provisions of either Section 3(D) or Section 4 of this Agreement; provided,
however, that if no such event has occurred or election has been made, such
term shall terminate on the date the Employee becomes age 65.
3. COMPENSATION
For all services rendered by the Employee while on active status under
this Agreement, the Company agrees to compensate the Employee for each
compensation year (January 1 through December 31) during the term hereof, as
follows:
A. Base Salary. A base salary shall be payable to the Employee
by the Company as a guaranteed annual amount under this Agreement equal
initially to $275,000.00 for each compensation year (as the same may be
adjusted as provided herein, the "Base Salary"), which shall be payable in the
intervals consistent with the Company's normal payroll schedules (but in no
event less than semi-monthly). The Base Salary shall be subject to being
increased (but not decreased or adjusted other than as provided in Section 4 of
this Agreement) in the sole discretion of the Compensation Committee of the
Board of Directors of the Company (hereinafter referred to as the "Compensation
Committee") but only in such form and to such extent as the Compensation
Committee may from time to time approve. The official action of the
Compensation Committee increasing the Base Salary payable to the Employee shall
modify the amount of Base Salary stated in this Section 3(A).
B. Other Compensation. The Employee shall be entitled to
participate in any incentive or supplemental compensation plan or arrangement
instituted by the Company and covering its principal executive officers and to
receive additional compensation from the Company in such form and to such
extent, if any, as the Compensation Committee may in its sole discretion from
time to time specify and determine with respect to the Company's principal
executive officers generally; provided, however, in the event the Employee
shall go on part-time status for any reason, the Employee shall nevertheless be
entitled to be paid pro rata incentive or supplemental compensation for the
fiscal year ending in the compensation year in which the Employee goes on
part-time status, for the number of calendar months during such fiscal year
that Employee shall have been on active status, at the same time, on the same
basis and to the same extent as any of the Company's principal executive
officers on active status are selected by the Compensation Committee to receive
any incentive or supplemental compensation award for such fiscal year. The
phrase "principal executive officer" as used in this Agreement shall mean the
chief executive officer of the Company and other senior corporate officers of
the Company
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<PAGE> 3
who are from time to time designated as principal executive officers by the
Compensation Committee.
C. Tax Indemnity. Should any of the payments of Base Salary,
other incentive or supplemental compensation, benefits, allowances, awards,
payments, reimbursements or other perquisites (including the payments provided
for under this Section 3(C)), singly, in any combination or in the aggregate,
that are provided for hereunder to be paid to or for the benefit of the
Employee (including, without limitation, the payment provided for in Section
3(D) hereof) or under any other plan, agreement or arrangement between the
Employee and the Company, be determined or alleged to be subject to an excise
or similar purpose tax pursuant to Section 4999 of the Internal Revenue Code of
1986, as amended (the "Code"), or any successor or other comparable federal,
state or local tax laws, the Company shall pay to the Employee such additional
compensation as is necessary (after taking into account all federal, state and
local income taxes payable by the Employee as a result of the receipt of such
additional compensation) to place the Employee in the same after tax position
(including federal, state and local taxes) he would have been in had no such
excise or similar purpose tax (or any interest or penalties thereon) been paid
or incurred. The Company hereby agrees to pay such additional compensation
within five (5) business days after the Employee notifies the Company that the
Employee intends to file a tax return which takes the position that such excise
or similar purpose tax is due and payable in reliance on a written opinion of
the Employee's tax counsel (such tax counsel to be chosen solely by the
Employee) that it is more likely than not that such excise tax is due and
payable. The costs of obtaining such tax counsel's opinion shall be borne by
the Company, and as long as such tax counsel was chosen by the Employee in good
faith, the conclusions reached in such opinion shall not be challenged or
disputed by the Company. If the Employee intends to make any payment with
respect to any such excise or similar purpose tax as a result of an adjustment
to the Employee's tax liability by any federal, state or local tax authority,
the Company will pay such additional compensation by delivering its cashier's
check payable in such amount to the Employee within five (5) business days
after the Employee notifies the Company of his intention to make such payment.
Without limiting the obligation of the Company hereunder, the Employee agrees,
in the event the Employee makes any payment pursuant to the preceding sentence,
to negotiate with the Company in good faith with respect to procedures
reasonably requested by the Company which would afford the Company the ability
to contest the imposition of such excise tax; provided, however, that the
Employee will not be required to afford the Company any right to contest the
applicability of any such excise tax to the extent that the Employee reasonably
determines (based upon the opinion of his tax counsel) that such contest is
inconsistent with the overall tax interests of the Employee.
D. (i) Change of Control - Operation of Section 3(D).
(a) This Section 3(D) shall be effective, but not
operative, immediately upon execution of this Agreement by
the parties hereto and shall remain in effect so long as the
Employee remains employed by the Company on active status and
for twelve (12) months after the Employee goes on part- time
status, but shall not be operative unless and until there has
been a Change in Control, as defined in
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subsection (i)(b) hereof. Upon such a Change in Control,
this Section 3(D) shall become operative immediately.
(b) "Change in Control" shall mean a change in
control of the Company that shall be deemed to have occurred
if and when, with or without the approval of the Board of
Directors of the Company incumbent prior to the occurrence,
(1) more than 25% of the Company's
outstanding securities entitled to vote in elections
of directors shall be acquired by any person (as such
term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended) other
than by any person which includes the Employee; or
(2) as the result of a tender offer,
merger, consolidation, sale of assets or contested
election, or any combination of such transactions,
the persons who were directors immediately before the
transaction shall cease to constitute a majority of
the Board of Directors of the Company or of any
successor to the Company;
provided, however, that a business combination involving the
Company and another solid waste management company, which is
approved by a 75% majority of the Board of Directors of the
Company incumbent prior to the occurrence of such business
combination, notwithstanding that a principal shareholder or
shareholders of such other solid waste management company
acquires more than 25% of the Company's outstanding
securities entitled to vote in the election of directors in
connection with such business combination, shall not be
deemed to be a "Change in Control."
(ii) Employee's Rights Upon Change of Control. If, while
the Employee is employed on active status by the Company, or if within
twelve (12) months after the Employee has been placed on part-time
status pursuant to either Section 4(C)(i) or (ii) or Section 4(G), a
Change in Control (as defined in subsection (b) of Section 3(D)(i))
occurs and one or more of the following events occurs:
(a) The assignment to the Employee of duties,
responsibilities, or status inconsistent with his duties,
responsibilities, and status prior to the Change in Control
or a reduction or alteration in the nature or status of the
Employee's duties and responsibilities from those in effect
prior to the Change in Control;
(b) A reduction by the Company in the Employee's
Base Salary (as in effect prior to the Change in Control);
(c) The failure by the Company to continue in
effect the Company's insurance, disability, stock option
plan, or any other employee benefit plans,
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policies, practices, or arrangements in which the Employee
participates, or the failure of the Company to continue the
Employee's participation therein on substantially the same
basis, both in terms of the amount of benefits provided and
the level of the Employee's participation relative to other
participants, as existed prior to the Change in Control;
(d) The failure of the Company to obtain a
satisfactory agreement from the successor to the Company to
assume and agree to perform this Agreement;
(e) Any purported termination by the Company of
the Employee's employment other than pursuant to Section
4(A)(i) or 4(A)(ii),
the Employee may, in his sole discretion, within three (3) months after the
date of the Change of Control, give notice to the Secretary of the Company that
he intends to elect to exercise his rights under this Section 3(D) (the "Notice
of Intention"). The right to give such Notice of Intention to elect to receive
the payment provided for in subsection (iii) of this Section 3(D) shall
continue for three (3) months from the date of the Change of Control
irrespective of any action by the Company pursuant to Section 4(A)(iii) or
Section 4(G) within such three (3) month period. Within thirty (30) days after
the Company's receipt of the Notice of Intention, the Company shall provide
written notice to the Employee setting forth the Company's computation of the
amount that would be payable pursuant to subsection (iii) of this Section 3(D),
accompanied by the written opinion of the Company's independent certified
public accountants confirming the Company's computation. If the Employee takes
exception to the Company's computation of such amount, the Employee may (but
shall not be prejudiced in his right to later contest the amount actually paid
by failure to do so) give a further written notice to the Company setting forth
in reasonable detail the Employee's exceptions to the Company's computation,
accompanied by the written opinion of the Employee's tax advisor confirming the
basis for such exceptions. Exercise by the Employee of his rights pursuant to
this Section 3(D) shall only be made by giving further notice to the Secretary
of the Company (the "Notice of Exercise") within six (6) months from the date
of the Notice of Intention.
(iii) Payment upon Change of Control.
(a) If the Employee gives the Notice of Exercise
described in subsection (ii) of this Section 3(D) to the
Company, the Company shall pay the Employee a lump sum amount
equal to three (3) times the Employee's base amount (as
defined by Section 280(G) of the Code), less one dollar
($1.00). The Company shall, within five (5) business days
after the date of the Notice of Exercise, deliver to the
Employee its cashier's check in the amount payable pursuant
to this subsection (iii)(a) of Section 3(D), and payment of
such amount shall terminate the Employee's rights to receive
any and all other payments, rights or benefits pursuant to
Sections 3(A), 3(B), 4 and 5 of this Agreement, other than
any payments, rights or benefits arising (x) pursuant to
Section 3(C), subsection (iii) of Section 3(D), Section 3(E)
or Section 12 of this Agreement, or (y) from
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<PAGE> 6
any other agreement, plan or policy which by its terms or by
operation of law provides for the continuation of such
payments, rights or benefits after the termination of the
Employee's relationship with the Company.
(b) Such lump sum payment shall be in addition to
and shall not be offset or reduced by (x) any other amounts
that have accrued or have otherwise become payable to the
Employee or his beneficiaries, but have not been paid by the
Company at the time the Employee gives Notice of Exercise
pursuant to this Section 3(D) including, but not limited to,
salary, severance pay, consulting fees, disability benefits,
termination benefits, retirement benefits, life and health
insurance benefits, or any other compensation or benefit
payment that is part of any valid previous, current, or
future contract, plan or agreement, written or oral, or (y)
any indemnification payments that may be or become payable to
the Employee pursuant to the provisions of the Company's
Certificate of Incorporation, By-laws, or similar policy,
plan, or agreement relating to the indemnification of
directors or officers of the Company under certain
circumstances.
E. Employee's Expenses. All costs and expenses
(including reasonable legal, accounting and other advisory fees)
incurred by the Employee to (w) defend the validity of this Agreement
(x) contest any determinations by the Company concerning the amounts
payable (or reimbursable) by the Company to the Employee under this
Agreement, (y) determine in any tax year of the Employee the tax
consequences to the Employee of any amounts payable (or reimbursable)
under Section 3(C) or (D) hereof, or (z) prepare responses to an
Internal Revenue Service audit of, and to otherwise defend, his
personal income tax return for any year which is the subject of any
such audit, or an adverse determination, administrative proceedings or
civil litigation arising therefrom that is occasioned by or related to
an audit by the Internal Revenue Service of the Company's income tax
returns, are, upon written demand by the Employee, to be promptly
advanced or reimbursed to the Employee or paid directly, on a current
basis, by the Company or its successors.
4. TERMINATION, PART-TIME STATUS, REVISED COMPENSATION, DEATH, AND
DISABILITY
A. Termination. The employment of the Employee under this
Agreement, while the Employee is on active status, may be terminated at any
time by the Company, acting through its Board of Directors (and not a committee
thereof),
(i) only for cause in the event of (x) the Employee's
final conviction of a felony crime involving moral turpitude, or (y)
the Employee's deliberate and intentional continuing refusal to
substantially perform his duties and obligations under this Agreement
(except by reason of incapacity due to illness or accident) if he (a)
shall have either failed to remedy such alleged breach within
forty-five (45) days from his receipt of written
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<PAGE> 7
notice from the Secretary of the Company demanding that he remedy such
alleged breach, or (b) shall have failed to take reasonable steps in
good faith to that end during such forty-five (45) day period,
provided that there shall have been delivered to the Employee a
further notice after the end of such forty-five (45) day period
asserting that the Board of Directors has determined that the Employee
was guilty of conduct set forth in this clause (y), that the Employee
has failed to take reasonable steps in good faith to remedy such
alleged breach, and specifying the particulars thereof in detail, and
provided further that the Employee thereafter shall have received a
certified copy of a resolution of the Board of Directors of the
Company adopted by the affirmative vote of not less than three-fourths
of the entire membership of the Board of Directors at a meeting called
and held for that purpose and at which the Employee was given an
opportunity to be heard, finding that the Employee was guilty of
conduct set forth in this clause (y), that the Employee has failed to
take reasonable steps in good faith to remedy such alleged breach, and
specifying the particulars thereof in detail,
(ii) upon a determination that the Employee has engaged in
willful fraud or defalcation involving material funds or other assets
of the Company, or
(iii) for any reason in its sole discretion upon written
notice to the Employee effective (subject to the provisions of Section
4(D) (iii) hereof) on the date that is five (5) years after the date
on which such notice is received by the Employee.
B. Termination Payment For Cause. In the event of termination
of the Employee's employment under this Agreement by the Company under either
Section 4(A)(i) or (ii), the Employee shall only be entitled to receive the
monthly installment of his Base Salary being paid at the time of such
termination, and, if applicable, other compensation, due hereunder, computed on
a pro rata basis, up to the effective date of such termination.
C. (i) Part-time Status-Election by Company. In the event
the Company shall give Employee notice of termination of the
Employee's employment under this Agreement pursuant to Section
4(A)(iii), the Employee shall, subject to the provisions of Section
4(D)(iii) and (vii), be placed on part-time employment status for a
period of five (5) years after the date on which such notice is
received by the Employee.
(ii) Termination - Election by Employee. Employee shall
have the right at any time during his employment on active status, by
giving written notice to the Secretary of the Company, to terminate
the Employee's employment under this Agreement effective ninety (90)
days after the date on which such notice is given by the Employee. In
the event the Employee shall make such election under this Section
4(C)(ii), the Employee shall, in addition to all other reimbursements,
payments or other allowances required to be paid under this Agreement
or under any other plan, agreement or policy which survives the
termination of this Agreement, be entitled to be paid, in addition to
the Base Salary payable during such ninety (90) day period after the
giving of such notice, a lump sum payment payable by delivery of the
Company's cashier's check within five (5) business
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<PAGE> 8
days after the end of such ninety (90) day period, in an amount equal
to three (3) monthly installments of the Base Salary (less required
tax withholding) in effect pursuant to Section 3(A) hereof at the time
the Employee makes such election under this Section 4(C)(ii).
Thereupon, this Agreement shall terminate and Employee shall have no
further rights under or be entitled to any other benefits of this
Agreement, provided that the provisions of Sections 3(C) and (E), 6,
7, 8 and 12 shall survive such termination.
(iii) Consulting Agreement - Election by Employee. In lieu
of the right provided under Section 4(C)(ii), the Employee shall have
the right at any time prior to June , 1997, by giving written notice
to the Company, to terminate the Employee's employment under this
Agreement effective thirty (30) days after the date on which such
notice is given by the Employee and to require the Company to enter
into with the Employee a consulting and non-compete agreement
commencing on the effective date of the termination of this Agreement.
Such consulting and non-compete agreement shall be in substantially
the form attached as Exhibit 1(a) to the Rangos Family Master
Agreement dated as of November 28, 1994, among the Company, John E.
Drury, Donald F. Moorehead, Jr., John G. Rangos, Sr., John G. Rangos,
Jr., and Alexander W. Rangos and providing for an initial Annual rate
(as defined herein) equal to the Base salary hereunder at the time
notice is given pursuant to Section 4(c)(iii); provided, however, that
such consulting and non-compete agreement shall terminate on June ,
2000. In the event the Employee shall make such election under this
Section 4(C)(iii), the Employee shall be paid his Base Salary during
the thirty (30) day period after the giving of such notice and shall
not be entitled to any payments under Section 4(C)(ii). This
Agreement shall terminate on the foregoing effective date and Employee
shall have no further rights under or be entitled to any other
benefits of this Agreement, provided that the provisions of Sections
3(C) and (E), 6, 7, 8 and 12 shall survive such termination.
D. Employee's Rights on Part-time Status. During the period
that the Employee is on part-time status,
(i) The Company shall pay Employee a revised, guaranteed
minimum annual Base Salary from the date the Employee goes on
part-time status for a period of five (5) years in an amount equal to
seventy-five percent (75%) of the average of the total annual direct
compensation paid to the Employee by the Company (whether under this
Agreement, a predecessor agreement or otherwise) for the two (2)
highest of the three (3) compensation years immediately preceding the
compensation year in which the notice specified in Section 4(A)(iii)
or Section 4(G) of this Agreement is given. As used in this
Agreement, the phrase "total annual direct compensation" shall mean
the sum of the gross amount of Base Salary (as from time to time
adjusted) paid to the Employee during a compensation year and all
other forms of direct compensation for a compensation year (including,
but not limited to, incentive or supplemental compensation awards made
to the Employee for the fiscal year ending in each of such
compensation year), whether or not paid to the Employee during a
compensation year, (x) including any amounts paid by the Employee into
any savings, deferred compensation or similar Company sponsored plan
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<PAGE> 9
or arrangement, and (y) excluding any amounts that must be recognized
as compensation in any such compensation year as a result of the
Employee's exercise of a stock option or receipt of an award or unit
of the Company's (or any successor's) stock;
(ii) The revised, guaranteed minimum annual Base Salary
payable by the Company to the Employee pursuant to this Section 4(D)
shall be increased (but not decreased) annually on the first
anniversary of the date of the Employee's going on part-time status
and each anniversary thereafter, on a compound basis, by the same
percentage increase (if any) in the Consumer Price Index for All Urban
Consumer's - All Items Index, for Dallas, Texas (or any substantially
similar index published for the same area) as published by the U.S.
Department of Labor, Bureau of Labor Statistics for the twelve (12)
month period immediately preceding the first anniversary of the date
of the Employee's going on part-time status and on each yearly
anniversary thereafter;
(iii) (1) The Employee shall continue to participate
(at not less than his highest levels of participation or
coverage during the last twelve (12) months the Employee was
on active status) in all of the Company's pension, group
life, medical, dental, accidental death or disability
insurance, thrift, savings, deferred compensation, stock
option, unit or award plans, vacation plans, automobile
allowances and all other Company benefit plans, fringe
benefits, allowances and accommodations of employment on
active status that are afforded to the principal executive
officers of the Company,
(2) With respect to any stock option, unit or
award plan of the Company as referred to in this Section
4(D)(iii), the Employee's right to continue participation at
and consistent with his highest levels of participation
during the last twelve (12) months the Employee was on active
status, (x) is intended to include (but only to the extent
consistent with the Company's treatment of its principal
executive officers) the Employee receiving renewal and/or
replacement grants of or awards for options or units on or
with respect to the Company's common stock (for not less than
the same number of shares or units, at the fair market value
prevailing at the time, and otherwise on terms and conditions
no more or less favorable than such grants or awards are made
to the Company's principal executive officers who are then on
active employment status) consistent with the Company's stock
option plan as then existing, not more than thirty (30) days
after the date any of the previous options or units are
cancelled, vest or expire (or would have expired but for
their exercise by the Employee), and (y) solely for the
purposes of any stock options, units or awards outstanding at
the time the Employee goes on part-time status or for any
renewal or replacement grants or awards, the Employee's
status as an "employee" or, thereafter, the Employee's status
as an "affiliate" of the Company (or of any successor
thereto) shall continue to the last date of expiration,
cancellation, vesting or exercise, as the case may be, of any
and all of such outstanding stock options, units or awards or
renewal or replacement grants or awards, and
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(3) If the Company is merged into or consolidated
with another corporation under circumstances where the
Company is not the surviving corporation, or if the Company's
voting common stock is no longer publicly traded on a
national securities exchange, or if the Company sells or
disposes of substantially all its assets to another
corporation, then any such renewal and/or replacement grants
of or awards for options or units pursuant to subparagraph
(x) of Section 4(D)(iii)(2) shall be made in or for the
shares of such stock or other securities as the holders of
shares of the Company's voting common stock received pursuant
to the terms of the merger, consolidation or sale, and
(4) If any of the Company's pension; group life,
medical, dental, accidental death, or disability insurance;
deferred compensation; thrift, savings, stock option, unit or
award plans; or any other Company benefit plans, fringe
benefits, allowances or accommodations of employment that
were available to the Employee at any time during the last
twelve (12) months the Employee was on active status shall
not continue to be maintained by the Company (or by any
successor thereto) or are otherwise not made available to the
Employee, the Company (or any successor thereto) shall
provide for or make available to the Employee substantially
similar economic benefits (and tax benefits attendant
thereto) through such alternative means and upon such terms
as shall be reasonably satisfactory to the Employee, provided
that nothing in this clause (4) shall obligate the Company to
provide for or make any such substantially similar
alternative benefits available to the Employee if the Company
(or any successor thereto) does not have such benefits
available either directly or indirectly (whether or not
granted) for its principal executive officers.
(iv) The Employee shall otherwise be entitled to all other
principal executive officer perquisites, allowances and benefits on
the same terms and conditions as such are from time to time made
available generally to the other principal executive officers of the
Company (or any successor thereto) but in no event less than the
highest level of the perquisites, allowances and benefits that were
available to the Employee during the last twelve (12) months of his
employment on active status;
(v) The Employee shall otherwise continue to receive all
the rights and benefits of this Agreement including, without
limitation, those rights and benefits (not inconsistent with this
Section 4(D)) that are set forth in Sections 3(C), 3(E), 5, 9 and 12
hereof;
(vi) The Employee shall not be prevented from accepting
other employment while on part-time status or engaging in (and
devoting substantially all of his time to) other business activities
that are not in conflict in any material respect with the limitations
set forth in Section 6 hereof;
(vii) This Agreement and Employee's continuing employment on
part-time status may be terminated at any time by the Company (x)
pursuant to the provisions of Section
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4(A)(ii), or (y) acting through its Board of Directors (and not a
committee thereof) only if the Employee knowingly violates in any
material respect the provisions of Sections 6, 7 and 8, respectively,
as found by final judgment of a court of competent jurisdiction;
(viii) While on part-time status and except as otherwise
required herein, the Employee shall not be required to perform any
regular duties for the Company (except to provide such services
consistent with the Employee's educational background, experience and
prior positions with the Company, as may be acceptable to the
Employee) or to seek or accept additional employment with any other
person or firm (although the Employee shall be free to do so so long
as accepting such additional employment or engaging in other business
activity is not in conflict in any material respect with the
limitations set forth in Section 6 of this Agreement). If the
Employee, at his discretion, shall accept any such additional
employment or engage in any such other business activity consistent in
all material respects with Section 6 of this Agreement, there shall be
no offset, reduction or effect upon any rights, benefits or payments
to which the Employee is entitled pursuant to this Agreement.
Furthermore, the Employee shall have no obligation to account for,
remit, rebate or pay over to the Company any compensation or other
amounts earned or derived in connection with such additional
employment or business activity consistent in all material respects
with Section 6 of this Agreement; and
(ix) The Employee shall, however, make himself generally
available for special projects or to consult with the Company and its
employees at such times and at such places as may be reasonably
requested by the Company and which shall be reasonably satisfactory to
the Employee and consistent with the Employee's regular duties and
responsibilities in the course of his then new occupation or other
employment, if any.
E. After the termination of the Employee's employment on
part-time status, the former Employee shall remain an "affiliate" of the
Company for the period described in Section 4(D)(iii)(2) hereof and during such
time shall continue to be available to consult with the Company and its
employees at such time and at such places as may be reasonably convenient and
acceptable to the former Employee and in such manner as may be consistent with
the former Employee's educational background, experience and prior positions
with the Company and with his regular duties and responsibilities in the course
of his then new occupation or other employment, if any.
F. Death. In the event of the Employee's death during the term
of his employment hereunder, the Company shall pay to the Employee's surviving
spouse or to the executor or administrator of the Employee's estate (if his
spouse shall not survive him) an amount equal to the installments of his Base
Salary then payable pursuant to Sections 3(A) or 4(D), as the case may be, for
the month in which he dies, and for the greater of (i) the balance of the term
remaining under this Agreement, or (ii) two (2) years.
G. Disability. The Employee shall be covered by the Company's
disability benefit plan as such plan may from time to time exist. The Company
may eliminate or change the terms
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and conditions of said plan at its discretion with no liability to the Employee
other than the liability, if any, under such plan which may have accrued up to
the elimination or change of such plan. In the event because of physical or
mental illness or personal injury while the Employee is on active status or
part-time status, the Employee shall become permanently unable or disabled such
that he is unable to perform, and in all reasonable medical likelihood, going
to continue indefinitely to be unable to perform his normal duties in his
regular manner, as determined by independent, competent medical authority, and
(i) if such disability determination occurs while the
Employee is on active status, the Company may elect (but shall not be
obligated) to terminate the Employee's employment under this Agreement
on a date which is not less than five (5) years after the date on
which written notice of such termination is received by the Employee
in which event the Employee shall be placed on part-time status, and
the Company shall pay to the Employee the Base Salary payable pursuant
to Section 4(D)(i) for a period not less than five (5) years
thereafter; or
(ii) if such disability determination occurs while the
Employee is on part-time status pursuant to Section 4(C)(i) or (ii),
the Company shall continue to pay to the Employee the amount of his
Base Salary then payable for the greater of (x) the balance of the
period remaining under the term of this Agreement, or (y) for two (2)
years;
reduced, in any case however, by the amount of any payments made to such
Employee under the coverage then afforded to the Employee by the Company's
disability benefit plan in effect at the time such disability determination is
made. The Employee shall, during such disability and until the effective date
of the termination of this Agreement and of payments hereunder by the Company
to the Employee, continue to enjoy all other applicable benefits of employment
that would otherwise pertain to continued employment on part-time status
pursuant to this Agreement.
H. Return of Property. Upon termination of the Employee's
employment under this Agreement, however brought about, the Employee (or his
representatives) shall promptly deliver and return to the Company all the
Company's property including, but not limited to, credit cards, manuals,
customer lists, financial data, letters, notes, notebooks, reports and copies
of any of the above, and any Protected Information (as defined in Section 7)
which is in the possession or under the control of the Employee except such
property as may be necessary for the former Employee to continue his duties, if
any, as an "affiliate" which the Company may expressly direct the former
Employee to keep in his possession; and upon the termination of his status as
an "affiliate", the former Employee shall promptly deliver and return all such
property to the Company.
5. OTHER EMPLOYEE RIGHTS
A. The Employee shall be entitled to (i) participate in the
Company's pension, group life, medical, dental, accidental death, or disability
insurance, thrift, savings, deferred compensation, incentive compensation,
stock option, unit or award plans, vacation plans,
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automobile allowances and all other Company benefit plans, fringe benefits,
allowances and accommodations of employment (including, but only as approved
from time to time by the Chief Executive Officer of the Company, club
memberships and dues, business and professional societies, etc.),
accommodations and allowances as are from time to time generally available or
applicable to the Company's principal executive officers and (ii) annual
vacations in accordance with the vacation policy established by the Company for
the Company's principal executive officers during which time his applicable
compensation shall be paid in full.
B. The Employee is authorized (to the same extent and in the
same manner as the Company's other principal executive officers are authorized)
to incur reasonable business expenses while on active or part-time status as an
employee of the Company, including expenses for meals, entertainment, hotel and
air travel, telephone, automobile, dues, club expenses, fees, and similar items
(and shall be entitled to incur such reasonable business expenses, determined
commensurate with the extent of his consultation hereunder, while an
"affiliate" of the Company). The Company shall either pay directly or promptly
reimburse the Employee for such expenses upon the presentment by the Employee
from time to time of an itemized accounting (as reasonably required by the
Company's policies) of such expenditures for which reimbursement is sought.
C. The Employee shall, while on active status, be provided by
the Company with office space, furnishings and facilities, reserved parking,
secretarial and administrative assistance, supplies and equipment commensurate
with the size and quality of that which is provided from time to time to the
Company's principal executive officers.
6. COVENANT NOT TO COMPETE
A. The Employee recognizes that in each of the highly
competitive businesses in which the Company is engaged, personal contact is of
primary importance in securing new customers and in retaining the accounts and
goodwill of present customers and protecting the business of the Company. The
Employee, therefore, agrees that at all times during the term of his employment
hereunder and for a period of two (2) years after the termination of his
employment hereunder, howsoever brought about, he will not, within 100 miles of
(i) the principal place of business of the Company,
(ii) the principal place of business of any corporation or
other entity owned, controlled by (or otherwise affiliated with) the
Company by which he may also be employed or served by him as an
officer or director, or
(iii) any other geographic location in which the Employee
has specifically represented the interests of the Company or such
other affiliated entity, in any of the businesses described in
subsections (a) through (d) below during the twelve (12) months prior
to the termination of this Agreement,
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as principal, agent, partner, employee, consultant, distributor, dealer,
contractor, broker or trustee or through the agency of any corporation,
partnership, association or agent or agency, engage directly or indirectly, in
any business of (a) rubbish, garbage, paper, textile wastes, chemical or
hazardous wastes, liquid or other waste collection, interim storage, transfer,
recovery, processing, recycling, marketing or disposal, (b) engineering or
design, construction, or operation of any plant, facility or other structure
having as its primary purpose the mass burning of solid or liquid waste with or
without any intended efforts to recover from such wastes, energy, steam, ash,
fly ash or other constituents of the waste stream, regardless of whether such
constituents have any value, (c) manufacturing, selling, leasing or
distributing machinery, equipment or products used or produced in connection
with the activities described in subsections (a) or (b) above, or (d) any other
material business engaged in by the Company, and shall not be the owner of more
than 1% of the outstanding capital stock of any corporation (other than the
Company), or an officer, director or employee of any corporation (other than
the Company or a corporation affiliated with the Company), or a member or
employee of any partnership, or an owner, investor, lender, agent, consultant,
distributor, dealer, contractor, broker or employee of any other business which
conducts a business described in subsections (a), (b), (c) and (d) above,
within the territory described above.
B. The Employee agrees that during the term of his employment
under this Agreement and for a period of two (2) years after the termination of
the Employee's employment under this Agreement, he will not directly or
indirectly (i) induce any customers of the Company or corporations affiliated
with the Company to patronize any similar business that competes with any
material business of the Company; (ii) canvass, solicit, or accept any similar
business from any customer of the Company or corporations affiliated with the
Company; (iii) request or advise any customers of the Company or corporations
affiliated with the Company to withdraw, curtail, or cancel such customer's
business with the Company; (iv) disclose to any other person, firm, or
corporation the names or addresses of any of the customers of the Company or
corporations affiliated with the Company; or (v) individually or through any
person, firm, association, or corporation with which he is now or may hereafter
become associated, cause, solicit, entice, or induce any present or future
employee of the Company or any corporation affiliated with the Company to leave
the employ of the Company or such other corporation to accept employment with
or compensation from the Employee or any such person, firm, association, or
corporation without the prior written consent of the Company. The Employee
further agrees that he shall not engage in any pattern of conduct that involves
the making or publishing of written or oral statements or remarks (including,
without limitation, the repetition or distribution of derogatory rumors,
allegations, negative reports or comments) which are disparaging, deleterious
or damaging to the integrity, reputation or good will of the Company, its
management, or of management of corporations affiliated with the Company.
C. If the provisions of this Section 6 are violated, in whole or
in part, the Company shall be entitled, upon application to any court of proper
jurisdiction, to a temporary restraining order or preliminary injunction
(without the necessity of posting any bond with respect thereto) to restrain
and enjoin the Employee from such violation without prejudice to any other
remedies the Company may have at law or in equity. Further, in the event that
the provisions of this
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Section 6 should ever be deemed to exceed the time, geographic or occupational
limitations permitted by the applicable laws, the Employee and the Company
agree that such provisions shall be and are hereby reformed to the maximum
time, geographic or occupational limitations permitted by the applicable laws.
The provisions of this Section 6 shall survive the termination of the
Employee's employment or expiration or termination of this Agreement.
7. CONFIDENTIAL INFORMATION - INTELLECTUAL PROPERTY
A. The Employee recognizes and acknowledges that he has had and
will continue to have access to various confidential or proprietary information
concerning the Company and corporations affiliated with the Company of a
special and unique value which may include, without limitation, (i) books and
records relating to operation, finance, accounting, sales, personnel and
management, (ii) policies and matters relating particularly to operations such
as customer service requirements, costs of providing service and equipment,
operating costs and pricing matters, and (iii) various trade or business
secrets, including business opportunities, marketing or business
diversification plans, business development and bidding techniques, methods and
processes, financial data and the like (collectively, the "Protected
Information").
B. The Employee agrees, therefore, that he will not at any time,
either while employed by the Company or afterwards, knowingly make any
independent use of, or knowingly disclose to any other person or organization
(except as authorized by the Company) any of the Protected Information.
C. In the event of a breach or threatened breach by the Employee
of the provisions of this Section 7, the Employee agrees that Company shall be
entitled to a temporary restraining order or a preliminary injunction (without
the necessity of the Company posting any bond in connection therewith)
restraining the Employee from using or disclosing, in whole or in part, such
Protected Information. Nothing herein shall be construed as prohibiting the
Company from pursuing any other remedies available to it for such breach or
threatened breach, including the recovery of damages from the Employee.
D. The Employee shall disclose promptly to the Company any and
all conceptions and ideas for inventions, improvements, and valuable
discoveries, whether patentable or not, which are conceived or made by the
Employee solely or jointly with another during the period of employment on
active status or within one (1) year thereafter and which pertain primarily to
the material business activities of the Company and the Employee hereby assigns
and agrees to assign all his interests therein to the Company or to its
nominee; whenever requested to do so by the Company, the Employee shall execute
any and all applications, assignments or other instruments which the Company
shall deem necessary to apply for and obtain Letters of Patent of the United
States or any foreign country or to otherwise protect the Company's interest
therein. These obligations shall continue beyond the termination of employment
with respect to inventions, improvements, and valuable discoveries, whether
patentable or not, conceived, made or acquired by the Employee during the
period of employment or within one (1) year thereafter,
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and shall be binding upon the Employee's assigns, executors, administrators and
other legal representatives.
8. EMPLOYEE CONDUCT
A. The Employee represents and agrees with the Company that he
will make no disbursement or other payment of any kind or character out of the
compensation paid or expenses reimbursed to him pursuant hereto or with any
other fund, which contravene, in any material respect, any policy of the
Company or, in any material respect, any applicable statute or rule, regulation
or order of any jurisdiction, foreign or domestic. The Employee further agrees
to indemnify and save harmless the Company from any liabilities, obligations,
claims, penalties, fines or losses resulting from any unauthorized or unlawful
acts of the Employee which contravene in any material respect any policy of the
Company or any statute, rule, regulation or order of any jurisdiction, foreign
or domestic, applicable to the Employee or the Company. The provisions of this
Section 8 shall survive the dissolution or termination of the Employee's
employment under this Agreement.
B. The Employee acknowledges that he has been furnished with a
current copy of the policy and procedures manual of the Company, that he has
read and understands such policies and procedures set forth in such manual,
that he understands such policies and procedures (and will read and become
familiar with any revisions or supplements to this manual) are applicable to
the Employee in the performance of his duties and job performance for the
Company, and that he agrees to observe in all material respects the Company's
policies and procedures in the conduct by the Employee of his employment duties
for the Company.
C. The Employee agrees to disclose honestly and fully all
information and documentation in his possession concerning all transactions or
events relating to or affecting the Company or any entity owned, controlled (or
otherwise affiliated) by the Company, as and to the extent such information or
documentation is requested by the Company or the authorized representatives
thereof; provided that if the Employee indicates to the Company that the
information or documentation requested is privileged, confidential or
personally sensitive, appropriate steps will be taken to attempt to protect
such privilege, confidentiality or privacy to the extent possible consistent
with the ethical or legal obligations applicable to the Company, but neither
such assertions by the Employee nor the undertakings attempted by the Company
with respect thereto shall qualify the unconditional disclosure obligation of
the Employee set forth above.
9. GENERAL PROVISIONS
A. In case any one or more of the provisions of this Agreement
shall, for any reason, be held or found by final judgment of a court of
competent jurisdiction to be invalid, illegal or unenforceable in any respect
(i) such invalidity, illegality or unenforceability shall not affect any other
provisions of this Agreement, (ii) this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein
(except that this subsection
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(ii) shall not prohibit any modification allowed under Section 6 hereof), and
(iii) if the effect of a holding or finding that any such provision is either
invalid, illegal or unenforceable is to modify to the Employee's detriment,
reduce or eliminate any compensation, reimbursement, payment, allowance or
other benefit to the Employee intended by the Company and Employee in entering
into this Agreement, the Company shall promptly negotiate and enter into an
agreement with the Employee containing alternative provisions (reasonably
acceptable to the Employee), that will restore to the Employee (to the extent
lawfully permissible) substantially the same economic, substantive and income
tax benefits the Employee would have enjoyed had any such provision of this
Agreement been upheld as legal, valid and enforceable. Failure to insist upon
strict compliance with any provision of this Agreement shall not be deemed a
waiver of such provision or of any other provision of this Agreement.
B. The Employee acknowledges receipt of a copy of this Agreement
(together with any attachments hereto), which has been executed in duplicate
and agrees that, with respect to the subject matter hereof, it is the entire
Agreement with the Company. Any other oral or any written representations,
understandings or agreements with the Company or any of its officers or
representatives covering the same subject matter which are in conflict with
this Agreement are hereby merged into and superseded by the provisions of this
Agreement.
C. The Company shall have no right of set-off or counter-claim
in respect of any debt or other obligation of the Employee to the Company
against any payment or other obligation of the Company to the Employee provided
for in this Agreement or pursuant to any other plan, agreement or policy.
D. No provision of this Agreement may be amended, modified or
waived unless such amendment, modification or waiver shall be agreed to in
writing and signed by the Employee and by a person duly authorized by the
Compensation Committee.
E. No right to or interest in any compensation or reimbursement
payable hereunder shall be assignable or divisible by the Employee; provided,
however, that this provision shall not preclude the Employee from designating
one or more beneficiaries to receive any amount that may be payable after his
death and shall preclude his executor or administrator from assigning any right
hereunder to the person or person entitled thereto.
F. The headings of Sections and subsection hereof are included
solely for convenience of reference and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
G. (i) Company consents with respect to any action, suit or
other legal proceeding pertaining directly to this Agreement or to the
interpretation of or enforcement of any of the Employee's rights
hereunder, to service of process in the State of Texas and appoints CT
Corporation System, 811 Dallas Avenue, Houston, Texas 77002 or such
other agent within Houston, Texas as shall be designated by Company in
a written notice to Employee, as its agent, in such state for such
purpose. Company irrevocably (i) agrees
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that any such suit, action or legal proceeding may be brought in the
courts of such state or the courts of the United States for such
state, (ii) consents to the jurisdiction of each such court in any
such suit, action or legal proceeding and (iii) waives any objection
it may have to laying of venue of any such suit, action or legal
proceeding in any of such courts.
(ii) This Agreement shall be construed in accordance with
and governed for all purposes by the laws of the State of Texas.
H. This Agreement may not be assigned, partitioned, subdivided,
pledged, or hypothecated in whole or in part without the express prior written
consent of the Employee and Company. This Agreement shall not be terminated
either by the voluntary or involuntary dissolution or the winding up of the
affairs of the Company, or by any merger or consolidation wherein the Company
is not the surviving corporation, or by any transfer of all or substantially
all of the Company's assets on a consolidated basis. In the event of any such
merger, consolidation or transfer of assets, the provisions of this Agreement
shall be binding upon and shall inure to the benefit of the surviving
corporation or to the corporation to which such assets shall be transferred.
I. If any amounts which are required or determined to be paid or
payable or reimbursed or reimbursable to the Employee under this Agreement (or
under any other plan, agreement, policy or arrangement with the Company) are
not so paid promptly at the times provided herein or therein, such amounts
shall accrue interest compounded daily at the annual percentage rate which is
three percentage points (3%) above the interest rate which is announced by The
First National Bank of Boston, Boston, Massachusetts, from time to time, as its
Base Rate (or prime lending rate), from the date such amounts were required or
determined to have been paid or payable or reimbursed or reimbursable to the
Employee until such amounts and any interest accrued thereon are finally and
fully paid, provided, however, that in no event shall the amount of interest
contracted for, charged or received hereunder exceed the maximum non-usurious
amount of interest allowed by applicable law.
J. The Company agrees with the Employee that, except to the
extent required by law, it will not make or publish, without the express prior
written consent of the Employee, any written or oral statement concerning the
terms of the Employee's employment relationship with the Company and will not,
if the Employee goes on part-time status for any reason or severs his
employment with the Company, make or publish any written or oral statement
concerning the Employee including, without limitation, his work-related
performance or the reasons or basis for the Employee going on part-time status
or otherwise severing his employment relationship with the Company.
10. TERMINATION OF PRIOR AGREEMENTS
This Agreement shall terminate and supersede any and all prior written
or oral agreements or understandings existing between the Company and the
Employee with respect to employment
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or compensation, and the Company and the Employee hereby mutually release and
discharge each other from any further obligation, liability or responsibility
under any of the foregoing.
11. NOTICES
Any notice required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been given when delivered in
person or when deposited in the U.S. mail, registered or certified, postage
prepaid, and mailed to the respective addresses set forth herein.
12. DISPUTES; PAYMENT OF ATTORNEYS' FEES
If at any time during the term of this Agreement or afterwards there
should arise any dispute as to the validity, interpretation or application of
any term or condition of this Agreement, the Company agrees, upon written
demand by Employee (and Employee shall be entitled, upon application to any
court of competent jurisdiction, to the entry of a mandatory injunction,
without the necessity of posting any bond with respect thereto, compelling the
Company) to promptly provide sums sufficient to pay on a current basis (either
directly or by reimbursing the Employee) the Employee's costs and reasonable
attorney's fees (including expenses of investigation and disbursements for the
fees and expenses of experts, etc.) incurred by the Employee in connection with
any such dispute or any litigation, (x) provided that the Employee shall repay
any such amounts paid or advanced if the Employee is not the prevailing party
with respect to any dispute or litigation arising under Sections 6, 7 or 8, or
(y) regardless of whether the Employee is the prevailing party in a dispute or
in litigation involving any other provision of this Agreement, provided that
the court in which such litigation is first initiated determines with respect
to this obligation, upon application of either party hereto, the Employee did
not initiate frivolously such litigation. Under no circumstances shall the
Employee be obligated to pay or reimburse the Company for any attorneys' fees,
costs of expenses incurred by the Company. The provisions of this Section 12
shall survive the expiration or termination of this Agreement and of the
Employee's employment hereunder.
IN WITNESS WHEREOF, the parties have executed and delivered this
Amended and Restated Agreement as of the day and year indicated above.
John G. Rangos, Jr.
----------------------------------
(Employee's Signature)
Employee's Permanent Address:
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USA WASTE SERVICES, INC.
By: Earl E. DeFrates
-----------------------------------
Name: Earl E. DeFrates
---------------------------------
Title: Executive Vice President
--------------------------------
5000 Quorum Drive, Suite 300
Dallas, Texas 75240
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