Exhibit 10.21
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement"), effective
as of this 20th day of June, 1997, by and between WASTE MANAGEMENT, INC., a
Delaware corporation (hereinafter referred to as the "Company") and X. X. XXXXX
(hereinafter referred to as "Xxxxx"):
W I T N E S S E T H:
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WHEREAS, Xxxxx was previously appointed as President of the Company's
Chemical Waste Management, Inc. subsidiary (hereinafter referred to as "CWM")
and the Company desires to retain the skill, management expertise and experience
of Xxxxx; and
WHEREAS, the Company re-acquired all of the outstanding publicly held
shares of stock of CWM; and
WHEREAS, the Company entered into a prior employment agreement dated as of
April 1, 1995 (the "Prior Agreement") in order to induce Xxxxx to become an
officer of the Company; and
WHEREAS, Xxxxx resigned his position as President of CWM, and became an
officer of the Company upon the terms and conditions of the Prior Agreement.
WHEREAS, the parties hereto desire to amend and restate the Prior
Agreement in its entirety and 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, including the Prior Agreement,
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. Upon the execution of this Agreement, Xxxxx shall be
employed as an officer of the Company and shall have such duties and
responsibilities as to the Company and its subsidiaries as may be designated by
the Chairman or the President of the Company. Incident to the performance of
such duties, Xxxxx shall be provided by the Company with office space,
facilities and secretarial assistance reflecting his position.
2. TERM. The term of Xxxxx'x employment hereunder shall be for a period
beginning on the date hereof and ending on December 31, 1999 (the "Term"),
provided that the provisions of Section 6(e) shall survive after the Term.
3. COMPENSATION.
(a) Base Salary. The Company agrees to pay Xxxxx during the Term a
minimum annual base salary of $400,000.00. The salary shall be payable at
intervals not less often than monthly and otherwise in accordance with the
Company's policies. Such salary shall be reviewed annually by the Company's
Board of Directors (or a duly constituted and empowered committee thereof) and
may be increased in accordance with the Company's policies governing management
compensation.
(b) Incentive Compensation. Xxxxx shall be entitled to a participate
in all incentive compensation programs available to senior management of the
Company as may now exist or hereinafter come into existence during the Term.
(c) Supplemental Employee Retirement. Xxxxx shall be entitled to
participate in the Company's Supplemental Executive Retirement Plan (the
"SERP"), upon the terms and conditions of such Plan.
(d) Other Benefits. During the Term, Xxxxx shall be entitled to
participate in all other employee benefits, perquisites, vacation days, benefit
plans or programs of the Company which are available generally to officers and
employees of the Company in accordance with the terms of such plans, benefits or
programs.
(e) Expenses. Xxxxx shall be reimbursed for his reasonable expenses
related to and for promoting the business of the Company including expenses for
entertainment, travel and similar items that arise out of Xxxxx'x performance of
services under this Agreement, and any such expenses paid by Xxxxx from his own
funds shall be promptly reimbursed to him by the Company, in accordance with the
policies and procedures of the Company in effect from time to time.
4. EXTENT OF SERVICE. Xxxxx shall devote his entire time, attention and
energies to the business of the Company, and shall not during the term of this
Agreement be engaged (whether or not during normal business hours) in any other
business or professional activity, whether or not such activity is pursued for
gain, profit or other pecuniary advantage; but this shall not be construed as
preventing Xxxxx from (a) investing his personal assets in businesses which do
not compete with the Company or any of its "Affiliates" (as hereinafter defined)
in such form or manner as will not require any services on the part of Xxxxx in
the operation or the affairs of the companies in which such investments are made
and in which his participation is solely that of an investor; (b) purchasing
securities in any corporation whose securities are publicly traded provided that
such investments do not result in a violation of Xxxxx'x covenants under Section
5 hereof; or (c) accepting appointments to the boards of directors of other
companies provided that the Chairman of the Company approves of such
appointments and Xxxxx'x performance of his duties on such boards does not
result in a violation of his covenants under Section 5 hereof.
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5. CONFIDENTIAL INFORMATION AND COVENANT NOT TO COMPETE. All payments
and benefits to Xxxxx under the Agreement shall be subject to Xxxxx'x compliance
with the provisions of this Section 5.
(a) Confidential Information. Xxxxx acknowledges that in his
employment he is or will be making use of, acquiring or adding to the Company's
confidential information which includes, but is not limited to, drawings,
memoranda and other materials or records of a proprietary nature; engineering
and technical information regarding the operations of the Company; and records,
policy and strategy matters relating to acquisitions, finance, personnel,
management, legal matters, accounting, marketing, and operations (including,
insofar as operations are concerned, customer and prospective customer lists,
price lists, customer service requirements, costs of providing services,
supplies and equipment maintenance costs). Therefore, in order to protect the
Company's confidential information and to protect other employees who depend on
the Company for regular employment, Xxxxx agrees that he will not in any way
utilize any of said confidential information except in connection with his
employment by the Company and except in connection with the business of the
Company he will not copy, reproduce, or take with him the original or any copies
of said confidential information and will not directly or indirectly divulge any
of said confidential information to anyone without the prior written consent of
the Company.
(b) Litigation Support. Xxxxx shall, upon reasonable notice, furnish
such information and proper assistance to the Company as may reasonably be
required by the Company in connection with any litigation in which the Company
or any of its Affiliates is, or may become a party. Xxxxx'x reasonable expenses
(including travel and reasonable attorneys fees) incurred in complying with this
covenant shall be promptly reimbursed.
(c) No Solicitation of Employees. Xxxxx agrees that during the Term
of this Agreement and continuing for a period of two years after the termination
of this Agreement, neither Xxxxx nor any person or enterprise controlled by
Xxxxx will solicit for employment any person employed by the Company or any of
its Affiliates.
(d) Covenant Not to Compete. Xxxxx agrees that during the Term of
this Agreement and for a period of two years after the termination of this
Agreement he will not (without prior written consent of the Chairman of the
Board of Directors) engage directly or indirectly in any business 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 in any respect competitive with the business of the Company, or with any
business controlling, controlled by or under common control with the Company (an
"Affiliate"), in any area of the United States in which the Company or any
Affiliate does business during such period. Notwithstanding the foregoing,
Xxxxx shall be entitled to own securities of any corporation conducting a
business competitive with the business of the Company or any of its Affiliates
so long as the securities of such corporation are listed on a national
securities exchange and the securities owned directly or indirectly by Xxxxx do
not represent more than 2% of any class of the outstanding securities of such
company.
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(e) Non-Solicitation of Customers. Xxxxx agrees that during the Term
of this Agreement and continuing for a period of two years after the end of the
Term, neither he nor any business in which he engages directly or indirectly
will (i) directly or indirectly induce any customers of the Company or its
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.
(f) Remedies for Breach of Covenants. In the event that a covenant
included in this Agreement shall be deemed by any court to be unreasonably broad
in any respect, it shall be modified in order to make it reasonable and shall be
enforced accordingly; provided, however, that in the event that any court shall
refuse to enforce any of the covenants contained in subsections 5(a) through
(e), then the unenforceable covenant shall be deemed eliminated from the
provisions of this Agreement for the purpose of those proceedings to the extent
necessary to permit the remaining covenants to be enforced so that the validity,
legality or enforceability of the remaining provisions of this Agreement shall
not be affected thereby.
If Xxxxx violates any of the covenants contained in this Section 5, then
the Company's obligation to make any payments to Xxxxx otherwise due him under
this Agreement shall immediately cease. In addition, Xxxxx acknowledges that any
material breach of his covenants contained in this Section 5 will cause
irreparable harm to the Company which will be difficult if not impossible to
ascertain, and the Company shall be entitled to equitable relief, including
injunctive relief, against any actual or threatened breach hereof, without bond
and without liability should such relief be denied, modified or vacated. Neither
the right to obtain such relief or the obtaining of such relief shall be
exclusive of or preclude the Company from any other remedy.
6. TERMINATION.
(a) Death or Disability. If Xxxxx should die or become physically or
mentally disabled and unable to perform duties hereunder for a continuous period
in excess of ninety (90) days (in the reasonable opinion of the Company), which
event shall result in the termination of Xxxxx'x employment hereunder, the
Company shall continue to pay Xxxxx'x current base salary (less the amount of
any disability benefit payments paid or payable to Xxxxx during such period from
disability benefits maintained and paid for by the Company) for the balance of
the calendar year in which such death or disability occurs, but in no event for
not less than one hundred eighty (180) days, plus any bonus payments which have
fully accrued at the date of termination pursuant to this Section 6(a). In
addition, in the event of disability, Xxxxx'x participation in any medical,
health, accident, disability, death, life insurance or similar plan in which
Xxxxx was participating immediately prior to termination shall continue for the
period in which payments are being made under this Section at the Company's
expense (subject to any normal employee contributions, if
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any), although any continuation of health coverage shall count toward the
"COBRA" continuation of coverage period. The payments to be made under this
Section shall be made to Xxxxx, or in the event of Xxxxx'x death, to such
beneficiary as Xxxxx may designate in writing for that purpose, or if Xxxxx has
not so designated, then the spouse of the Xxxxx, or if none is surviving, then
to the personal representative of the estate of Xxxxx. This Section shall not be
effective after any Termination pursuant to Section 6(b) or (c).
(b) Termination for Cause. The Company shall have the right to
terminate this Agreement for Cause upon thirty (30) days prior written notice
if, in the reasonable determination of the Company, Xxxxx has engaged in
misconduct so as to constitute Cause. For purposes of this Agreement, "Cause"
shall mean:
(a) the breach by Xxxxx of his covenants under Sections 5(a)
through 5(e) hereof;
(b) a substantial failure by Xxxxx to perform his duties under
this Agreement, and which failure is determined by the Board of
Directors of the Company to be injurious to the business or
interests of the Company;
(c) Conviction (or a plea) of a felony or conviction of a crime
(or a plea) involving moral turpitude which adversely affects the
ability of Xxxxx to perform his material duties under this
Agreement or is materially injurious to the Company's business or
reputation; or
(d) any act of fraud or defalcation involving the assets or
business of the Company.
If this Agreement is terminated for Cause pursuant to this Section 6(b),
the Company shall have no further obligations to Xxxxx under this Agreement.
However, Xxxxx'x covenants under Section 5 hereof shall remain in full force and
effect.
(c) Termination by Company. If the Company terminates the employment
of Xxxxx during the Term hereof, for any reason other than as specified in
Sections 6(a) or 6(b), Xxxxx shall be entitled to the following liquidated
damages: (i) an amount equal to base salary until the end of the Term and (ii)
any unpaid but fully accrued annual bonus for the prior calendar year payable
under the Company's Corporate Incentive Bonus Plan.
(d) Termination by Xxxxx. If Xxxxx voluntarily terminates his
employment prior to the expiration of the Term of this Agreement, this Agreement
shall terminate forthwith and all obligations of each party to the others shall
terminate immediately, except for Xxxxx'x obligations under Section 5 hereof.
(e) Effect of Termination on the SERP. If the employment of Xxxxx is
terminated, for any reason other than as specified in Sections 6(b) or 6(d), at
any time during or after the Term and prior to Xxxxx'x earning at least 10 years
of Eligibility Service and Benefit
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Service, as those terms are defined in the SERP, then Xxxxx shall be deemed to
have 10 years of Eligibility Service and Benefit Service for purposes of the
SERP.
7. WITHHOLDING OF TAXES. The Company may withhold from any benefits
payable under the Agreement all federal, state, city or other taxes as shall be
required pursuant to any law or governmental regulation or ruling.
8. FACILITY OF PAYMENT. If the Company shall find that any person to whom
any amount is or was payable hereunder is unable to care for his affairs because
of illness or accident, or is a minor, or has died, then the Company, if it so
elects, may direct that any payment due him or his estate (unless a prior claim
therefore has been made by a duly appointed legal representative) or any part
thereof, be paid or applied for the benefit of such person or to or for the
benefit of his spouse, children or other dependents, an institution maintaining
or having custody of such person, any other person deemed by Board of Directors
of the Company to be a proper recipient on behalf of such person otherwise
entitled to payment, or any of them, in such manner and proportion as the Board
may deem proper. Any such payment shall be in complete discharge of the
liability of the Company therefor.
9. UNSECURED CREDITOR STATUS. Nothing contained in the Agreement, and no
action taken pursuant to its provisions, shall create or be construed to create
a trust of any kind, or a fiduciary relationship between the Company and Xxxxx,
his beneficiaries, legal representative or any other person. To the extent that
any person acquires a right to receive payments under the Agreement, such right
shall be no greater than the right of an unsecured general creditor of the
Company. All payments to be made hereunder shall be paid from the general funds
of the Company and no special or separate fund shall be established and no
segregation of assets shall be made to assure payment of such amounts.
10. NON-ALIENATION OF BENEFITS. Except insofar as applicable law may
otherwise require, no amount payable to or in respect of Xxxxx at any time under
the Agreement shall be subject in any manner to alienation by anticipation,
sale, transfer, assignment, bankruptcy, pledge, attachment, charge or
encumbrance of any kind, and any attempt to so alienate, sell, transfer, assign,
pledge, attach, charge or otherwise encumber any such amount, whether presently
or thereafter payable, shall be void; provided, however, that nothing in this
Section 10 shall preclude Xxxxx from designating a beneficiary or beneficiaries
to receive any benefit on his death.
11. SEVERABILITY. If any provision of this Agreement, as applied to any
party or to any circumstance, shall be found by a court to be void, invalid or
unenforceable, the same shall in no way affect any other provision of this
Agreement the application of any such provision in any other circumstance, or
the validity or enforceability of this Agreement.
12. ENTIRE UNDERSTANDING. This Agreement contains the entire understanding
of the parties hereto relating to the subject matter contained herein and
supersedes all prior and collateral agreements, understandings, statements and
negotiations of the parties. Each party acknowledges that no representations,
inducements, promises, or agreements, oral or written,
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with reference to the subject matter hereof have been made other than as
expressly set forth herein. This Agreement cannot be changed, rescinded or
terminated orally.
13. NOTICES. Any notice required or permitted to be given under this
Agreement shall he 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 Xxxxx, at his address set forth below, if to the Company, Attention: General
Counsel, 0000 Xxxxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxx 00000.
14. ASSIGNMENT. Xxxxx may not assign his obligations hereunder. The rights
of Xxxxx 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.
15. 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.
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
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Xxxx X. Xxxxxxxx, Chairman
/s/ X. X. Xxxxx
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Name: X. X. Xxxxx
Address: 000 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
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