Exhibit 10.43
WASTE MANAGEMENT, INC.
EMPLOYMENT SECURITY AGREEMENT
THIS EMPLOYMENT SECURITY AGREEMENT (the "Agreement") dated as of this 20th
day of June, 1997, between WASTE MANAGEMENT, INC., a Delaware corporation
(hereinafter referred to as the "Company"), and Xxxxxx X. Xxxxxxx (hereinafter
referred to as the "Executive"):
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Executive has previously served and is serving as Executive
Vice President and Chief Operating Officer; 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
Executive Vice President and Chief Operating Officer; 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 or its applicable subsidiary (hereinafter the
"Employer") shall continue to employ the Executive as an employee at will 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 Chief Executive Officer and
shall serve as a member of the Executive Committee of the Company. The Executive
shall report to the Chief Executive Officer 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 June 20, 2000. Subject to the provisions of
Section 7 hereof, and unless a party gives 30 days'
prior written notice to the other, on June 20, 1998 and on each successive June
20, the Term of this Agreement shall be renewed for a period ending on the
earlier of (i) the date three (3) years from such June 20, or (ii) the date of
the Executive's 62nd birthday on which birthday this Agreement shall terminate
unless earlier terminated in accordance with the terms hereof.
3. COMPENSATION. (a) 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 by either the Compensation and Stock Option Committee of
the Board of Directors of the Company (subject to approval by the full Board)
or, in the event Executive is not among the Company officers whose compensation
is subject to review by the Compensation and Stock Option Committee of the
Board, by the Executive Committee of the Company (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 refer
to 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.
(b) In consideration of the execution of this Agreement, the Company agrees
to take the following actions, all of which will be effective as of June 20,
1997:
(1) Increase Executive's annual salary to $650,000;
(2) Award Executive stock options under the Company's 1997 Equity
Incentive Plan with respect to 100,000 shares of Company common stock, such
options having a 10-year term and vesting in equal installments on the
first three anniversaries of the grant date;
(3) Award Executive 55,000 shares of restricted stock under the
Company's 1997 Equity Incentive Plan, which shares will be subject to the
provisions of the restricted stock award certificate attached hereto as
Exhibit 1;
(4) Enter into a Promissory Note and Security Agreement with the
Executive in the form attached as Exhibit 2, the proceeds of which loan
will be used to purchase shares of Company common stock; and
(5) Award Executive a cash bonus of $300,000.
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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:
(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) 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 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 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
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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.
(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 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;
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(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);
(iv) a relocation of Executive's primary employment location to a
location which is more than 50 miles from his current location;
or
(v) the Company terminates the automatic renewal provision of this
Agreement by providing Executive with 30 days' prior written
notice as provided in Section 2 hereof
then Executive may deliver written notice of termination of his employment to
the Company within three months of such event (which notice 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:
(t) Executive shall receive an amount equal to his then current base salary
for three years, payable at intervals not less frequently than monthly over
a period of three years following the end of the Term (such period of
payment to be referred to herein as the "Severance Period");
(u) 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
date of the written notice of termination of employment referred to above,
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;
(v) with respect to 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 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;
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(w) the Executive's restricted stock shall be treated in accordance with
the terms of the Restricted Stock Award Certificate applicable thereto;
(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; and
(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
voluntary termination, (ii) pay all incentive compensation earned by the
Executive for performance periods which are completed prior to the date of
voluntary 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 and the vesting
of the Executive's restricted stock shall be treated in accordance with the
terms of their 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.
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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 3 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.
(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.
(e) This Agreement shall supersede any and all prior employment
agreements or understandings, written or oral, with Executive.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
WASTE MANAGEMENT, INC.
By /s/ Xxxx X. Xxxxxxxx
------------------------------
Xxxx X. Xxxxxxxx,
Chairman of the Board
/s/ Xxxxxx X. Xxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxx
Address: 000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
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