EXHIBIT 10.8
WASTE MANAGEMENT, INC.
EMPLOYMENT SECURITY AGREEMENT
THIS EMPLOYMENT SECURITY AGREEMENT (the "Agreement") dated as of this 28th
day of July, 1997, between WASTE MANAGEMENT, INC., a Delaware corporation
(hereinafter referred to as the "Company"), and Xxxx X. Xxxxxx (hereinafter
referred to as the "Executive"):
W I T N E S S E T H:
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WHEREAS, the Executive has previously served and is serving as Vice
President and Assistant Controller of the Company; and
WHEREAS, the Executive has developed extensive experience with respect to
the management and operations of the Company and its subsidiaries which it
considers extremely valuable to the continued prosperity of the Company; and
WHEREAS, the Company wishes to ensure that it will continue to have the
Executive available to perform for the Company and its subsidiaries duties as
Vice President and Assistant Controller; and
WHEREAS, the Company and the Executive desire to set forth in this
Agreement the terms, conditions and obligations of the parties with respect to
such employment and this Agreement is intended by the parties to supersede all
previous agreements and understandings, whether written or oral, concerning such
employment.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants contained herein, the parties agree as follows:
1. EMPLOYMENT. The Company's applicable subsidiary (hereinafter the
"Employer") shall continue to employ the Executive upon the terms and conditions
hereinafter set forth. The Executive shall perform such duties and
responsibilities for the Employer which are commensurate with his position as
may be assigned him by the Company's Vice President and Controller. The
Executive shall report to the Vice President and Controller of the Company.
Incident to the performance of such duties, the Executive shall be provided by
the Employer with office space, facilities and secretarial assistance
commensurate with that currently being provided to the Executive.
2. TERM. Subject only to the provisions hereof set forth in Section 7, the
term of this Agreement (herein the "Term") shall be for a period beginning on
the date hereof and ending on April 30, 2000 or, if earlier, on the Executive's
62nd birthday on which birthday this Agreement shall terminate unless earlier
terminated in accordance with the terms hereof.
3. COMPENSATION. During the Term, the Executive's salary shall be payable
at intervals not less often than semi-monthly. The Executive's salary shall be
established be either the Executive Committee of the Company, or in the event
the Executive is among the Company officers whose compensation is subject to
review by the Compensation and Stock Option Committee of the Board of Directors
of the Company, by such Committee (the applicable committee being referred to
herein as the "Committee") and all adjustments thereto and all aspects of the
Executive's incentive or performance compensation shall be established by the
Committee in its sole discretion. In the event there is no Committee in
existence at any time, the term Committee shall be deemed to mean the Chief
Executive Officer of the Company. During the Term, the Executive shall also
receive such benefits and perquisites (the "Benefits") which are made available
to similarly positioned executives of the Employer including, without
limitation, incentive compensation, loans, awards, insurance, stock options,
stock purchase plans, benefits from qualified plans or non-qualified plans or
other benefit plans now or hereafter existing which are adopted by the Employer
for the benefit of its employees generally and for the benefit of the Employer's
officers, all such Benefits to be provided in such amounts as may be determined
from time to time by the Committee in its discretion.
4. EXTENT OF SERVICE. During the Term, the Executive shall devote his full
time, attention, and energy to the business of the Employer and the Executive
shall not be engaged in any other business activity pursued for gain, profit, or
other pecuniary advantage which activity interferes with the Executive's duties
and responsibilities provided for herein.
5. NON-COMPETITION AND NON-SOLICITATION. Executive agrees that:
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(a) During the Term and for a period of one year thereafter or during
any Severance Period, if longer (the "Restricted Period"), Executive agrees that
he will not (without the written consent of the Chairman of the Board) engage
directly or indirectly in any business within the United States (financially as
an investor or lender or as an employee, director, officer, partner, independent
contractor, consultant or owner or in any other capacity calling for the
rendition of personal services or acts of management, operation or control)
which is directly competitive with the business at any time during the
Restricted Period conducted by the Company or any of its subsidiaries or
Affiliates as defined below. Notwithstanding the foregoing, Executive shall be
entitled to own securities of any corporation conducting a business competitive
with the business of the Company or any of its subsidiaries or Affiliates so
long as the securities of such corporation are listed on a national securities
exchange and the securities owned directly or indirectly by Executive do not
represent more than two percent (2%) of any class of the outstanding securities
of such company.
(b) During the Restricted Period, in addition to the obligations
pursuant to Subsection 5(a), Executive agrees that neither he nor any business
in which he engages directly or indirectly will (i) directly or indirectly
induce any customers of the Company or of corporations or businesses which
directly or indirectly control or are controlled by or under common control with
the Company ("Affiliates") to patronize any business similar to that of the
Company, (ii) canvass, solicit or accept any similar business from any customer
of the Company or any Affiliates, (iii)
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directly or indirectly request or advise any customer of the Company or
Affiliates to withdraw, curtail or cancel such customer's business with the
Company or Affiliates, (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 Affiliates, or (v) compete with the Company or Affiliates in
acquiring or merging with any other business or acquiring the assets of such
other business.
(c) During the Restricted Period, in addition to the obligations
pursuant to Subsections 5(a) and 5(b), Executive agrees that neither he nor any
business in which [he/she] engages directly or indirectly will (i) hire or
attempt to hire any employee of the Company or its Affiliates nor (ii) directly
or indirectly encourage any employee of the Company or its Affiliates to
terminate employment with the Company or its Affiliates. Notwithstanding the
foregoing, it shall not be deemed a violation of this subsection if a business
which employs Executive hires or attempts to hire an employee of the Company or
its Affiliates and Executive has no knowledge of, control over or involvement
with such solicitation.
(d) In the event that any of the provisions of this Section 5 should
ever be deemed to exceed the time, geographic or occupational limitations
permitted by applicable laws, then such provisions shall be and are hereby
reformed to the maximum time, geographic or occupational limitations permitted
by law.
6. CONFIDENTIAL INFORMATION. The Executive acknowledges that in his
employment he is or will be making use of, acquiring or adding to the Employer's
and Company's confidential information which includes, but is not limited to,
memoranda and other materials or records of a proprietary nature and records and
policy matters relating to finance, personnel, management and operations.
Therefore, in order to protect the Employer's and Company's confidential
information and to protect other employees who depend on the Employer and
Company for regular employment, the Executive agrees that he will not in any way
utilize any of said confidential information except in connection with his
employment by the Employer, and except in connection with the business of the
Employer and Company he will not copy, reproduce or take with him the original
or any copies of said confidential information and will not disclose any of said
confidential information to anyone.
7. TERMINATION.
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(a) Death or Disability. If the Executive should become physically or
mentally disabled and unable to perform his duties hereunder for a continuous
period in excess of ninety (90) days (in the reasonable opinion of the
Committee), or if the Executive should die while an employee of the Employer,
this Agreement and Executive's employment with the Employer shall immediately
terminate.
(b) Termination by the Employer for Cause. The following events shall
create in the Employer a right to terminate the Executive's employment under
this Agreement prior to the expiration of the Term: (i) the commission of fraud,
embezzlement or theft by the Executive in connection with the Executive's
duties; (ii) the intentional wrongful damage to property of the
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Company, the Employer and/or their Affiliates by the Executive; (iii) the
intentional wrongful disclosure by the Executive of any secret process or
confidential information of the Company, the Employer and/or their Affiliates;
or (iv) the violation of the Executive's non-disclosure, non-solicitation and
non-competition covenants set forth in Sections 5 and 6. In the event of such a
Termination for cause pursuant to this Subsection, all of the obligations of the
Employer and the Company under this Agreement shall immediately terminate.
(c) Other Termination by Employer. In the event the Employer shall elect
to terminate Executive's employment for any reason other than those specified in
Subsection 7(a) or 7(b), it shall provide written notice of such termination to
Executive. In the event that there occurs without the written consent of the
Executive:
(i) a change in the Executive's duties or responsibilities, or a
change in the Executive's reporting relationships, either of which
results in or reflects a diminution of the scope or importance of
the Executive's duties and responsibilities;
(ii) a reduction in the Executive's then current annual base salary
(other than as part of reductions in annual base salary affecting
the Employer's officers generally);
(iii) a reduction in the level of benefits available or awarded under
employee and officer benefit plans and programs, including, but
not limited to annual and long-term incentive and stock-based
plans and programs (other than as part of reductions in such
benefit plans or programs affecting the Employer's officers
generally); or
(iv) a relocation of Executive's primary employment location to a
location which is more than 50 miles from his current location
then Executive may deliver written notice of termination to the Company within
three months of such event (which shall be effective even if such three months
expire after the end of the Term). In either case and subject to the execution
and delivery by Executive to the Company of the release described in Section 9
hereof, the Company shall provide Executive with severance compensation and
benefits as follows:
(u) Executive shall receive an amount equal to one month's current base
salary for each full year of service with the Company, the Employer or
their Affiliates, but in no event less than one year's nor more than two
years' continued base salary, payable at intervals not less frequently than
monthly over a period of months equal to the number of months of severance
pay provided for by this subsection (u), (such period of payment to be
referred to as the "Severance Period");
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(v) with respect to any participation rights in the Company's annual or
long-term incentive plans which have been awarded to Executive prior to the
end of the Term, Executive shall be entitled to receive a prorated award
under any such plan, payable if and when awards are paid to other similarly
positioned officers of the Employer, such proration to be determined by
dividing the number of whole or partial months the Executive is employed
during the incentive compensation performance period by the total number of
months in the incentive compensation performance period;
(w) with respect to the Executive's stock options, the Company will
recommend to the Compensation and Stock Option Committee of the Board of
Directors of the Company that the exercisability of the Executive's
outstanding stock options be accelerated, such options shall remain
exercisable during the Severance Period (unless they shall expire earlier
by their terms) and such options shall otherwise be treated in accordance
with the terms of their respective grants;
(x) the Executive's medical, dental and vision Benefits shall be continued
on the same basis as offered to active salaried employees for the Severance
Period or until such earlier time as the Executive becomes employed and
eligible for such benefits under a plan of the new employer; and
continuation coverage under COBRA shall commence at the end of the
Severance Period;
(y) credit for vesting and benefit service under the Company's Supplemental
Executive Retirement Plan shall be provided to Executive for the Severance
Period; and
(z) all other Benefits shall be paid or continued only to the extent the
terms thereof provide for payment or continuation following the termination
of employment.
The foregoing shall be in lieu of all salary, bonuses or incentive or
performance based compensation for the remainder of the Term. If Executive
should die during the Severance Period, any remaining severance payments shall
be made to Executive's surviving spouse or, if none, to his estate.
(d) Voluntary Termination. If during the Term the Executive should
voluntarily terminate his employment with the Employer for any reason, including
retirement, other than as described in Subsection 7(c) hereof, the obligations
of the Employer and the Company under this Agreement shall terminate forthwith,
other than obligations to (i) pay the Executive's base salary to the date of
termination, (ii) pay all incentive compensation earned by the Executive for
performance periods which are completed prior to the date of termination, at
such times and on the same basis amounts as such incentive compensation becomes
payable to other executives of the Employer and (iii) pay or make available to
the Executive all Benefits which by their terms or under applicable law survive
the voluntary termination of the Executive's employment; and the Executive shall
remain bound by his non-disclosure, non-solicitation and non-competition
covenants set forth in Sections 5 and 6 hereof. The exercisability of the
Executive's outstanding stock options shall be treated in accordance with the
terms of their
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respective grants or awards, except that in the case of retirement on or after
age 62, the Company will recommend to the Compensation and Stock Option
Committee of the Board of Directors of the Company that the exercisability of
Executive's outstanding stock options be accelerated.
8. ELECTION TO EXTEND SEVERANCE PERIOD. Notwithstanding anything in
Subsection 7(c) to the contrary, the Executive may make an irrevocable written
election, within 30 days of receipt or delivery of the written termination
notice provided for in Subsection 7(c), that would extend the time period during
which the base salary is to be paid under Subsection 7(c) for one additional
year. The total amount of base salary that is to be paid under Subsection 7(c)
will not be affected by this election. If such election is made, the term
"Severance Period" will be deemed to refer to such extended payment period.
9. GENERAL RELEASE AND COOPERATION AGREEMENT. Notwithstanding anything in
Subsection 7(c) to the contrary and in consideration therefor, severance
benefits thereunder shall only become payable by the Company if the Executive
executes and delivers to the Company a General Release and Cooperation Agreement
on or after the date of written notice of termination of Executive's employment
and in substantially the form attached as Exhibit A hereto.
10. 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
deposited in the U.S. mail in a registered, postage prepaid envelope addressed:
If to the Executive, at his address set forth below, and if to the Company, c/o
Chairman of the Board, WASTE MANAGEMENT, INC., 0000 Xxxxxxxxxxx Xxxx, Xxx Xxxxx,
Xxxxxxxx 00000, with a copy to the General Counsel, WASTE MANAGEMENT, INC., at
the same address.
11. ASSIGNMENT. The Executive may not assign his obligations hereunder. The
rights of the Executive and the rights and obligations of the Company hereunder
shall inure to the benefit of and shall be binding upon their respective heirs,
personal representatives, successors and assigns.
12. MISCELLANEOUS.
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(a) This Agreement shall be subject to and governed by the laws of the
State of Illinois.
(b) Failure to insist upon strict compliance with any provisions hereof
shall not be deemed a waiver of such provisions or any other provision hereof.
(c) This Agreement may not be modified except by an agreement in
writing executed by the parties hereto.
(d) The invalidity or unenforceability of any provision hereof shall
not affect the validity or enforceability of any other provision.
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(e) This Agreement shall supersede any and all prior employment
agreements or understandings, written or oral, with Executive.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
WASTE MANAGEMENT, INC.
/s/ Xxxx X. Xxxxxxx
By______________________________
Xxxx X. Xxxxxxx
Senior Vice President
/s/ Xxxx X. Xxxxxx
________________________________
Xxxx X. Xxxxxx
Address: 00 Xxxxxxxx Xxxxxx
Xxx. 000
Xxxxxxx, XX 00000
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