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EXHIBIT 10.42
AMENDED EMPLOYMENT AGREEMENT
WASTE MANAGEMENT, INC. (the "Company"), and MILLER J. MATHEWS, JR. (the
"Executive") hereby enter into this AMENDED EMPLOYMENT AGREEMENT
("Agreement") dated as of October 1, 1998, as follows:
1. EMPLOYMENT.
The Company shall employ Executive, and Executive shall be employed by the
Company upon the terms and subject to the conditions set forth in this
Agreement.
2. TERM OF EMPLOYMENT.
The term of Executive's employment shall conclude on December 31, 2000.
Employment after December 31, 2000, shall be of a part-time nature for three (3)
years and shall be at the option of the Executive, pursuant to the provisions of
Section 6(e) of this Agreement, as amended herein, unless employment is
terminated pursuant to one of the provisions contained in Section 5 of this
Agreement.
3. DUTIES AND RESPONSIBILITIES.
(a) Executive shall serve as Senior Vice President, and report to President
and Chief Operating Officer. In such capacity, Executive shall perform
such duties as may be assigned to Executive from time to time by the
Board of Directors of the Company or the Chief Operating Officer of the
Company or the Chief Executive Officer of the Company.
(b) Executive shall faithfully serve the Company, and/or its affiliated
corporations, devote Executive's full working time, attention and
energies to the business of the Company, and/or its affiliated
corporations, and perform the duties under this Agreement to the best
of Executive's abilities. Executive may make and manage his personal
investments, provided such investments in other activities do not
violate, in any material respect, the provisions of Section 8 of this
Agreement.
(c) Executive shall (i) comply with all applicable laws, rules and
regulations, and all requirements of all applicable regulatory,
self-regulatory, and administrative bodies; (ii) comply with the
Company's rules, procedures, policies, requirements, and directions;
and (iii) not engage in any other business or employment without the
written consent of the Company except as otherwise specifically
provided herein.
4. COMPENSATION AND BENEFITS.
(a) BASE SALARY. During the Employment Term, the Company shall pay
Executive a base salary at the annual rate of Four Hundred Thousand
($400,000) Dollars per year, or such higher rate as may be determined
from time to time by the Company ("Base Salary"). Such Base Salary
shall be paid in accordance with the Company's standard payroll
practice for executives.
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(b) EXPENSE REIMBURSEMENT. The Company shall promptly reimburse Executive
for the ordinary and necessary business expenses incurred by Executive
in the performance of the duties hereunder in accordance with the
Company's customary practices applicable to executives, provided that
such expenses are incurred and accounted for in accordance with the
Company's policy.
(c) BENEFIT PLANS. Executive shall be eligible to participate in or receive
benefits under any pension plan, profit sharing plan, medical and
dental benefits plan, life insurance plan, short-term and long-term
disability plans, supplemental and/or incentive compensation plans, or
any other fringe benefit plan, generally made available by the Company
to executives working pursuant to this form of Agreement (hereinafter
referred to as "similarly situated executives").
(d) EMPLOYEE'S EXPENSES. All costs and expenses (including reasonable
legal, accounting and other advisory fees) incurred by the Executive to
(i) defend the validity of this Agreement, (ii) contest any
determination by the Company concerning the amounts payable (or
reimbursable) by the Company to the Executive under this Agreement,
(iii) determine in any tax year of the Executive, the tax consequences
to the Executive of any amount payable (or reimbursable) under Section
7(b) or 7(c) hereof, or (iv) 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 any audit by the
Internal Revenue Service of the Company's income tax returns, are, upon
written demand by the Executive, to be promptly advanced or reimbursed
to the Executive, or paid directly, on a current basis, by the Company
or its successors.
5. TERMINATION OF EMPLOYMENT.
Executive's employment hereunder may be terminated under the following
circumstances:
(a) DEATH. Executive's employment hereunder shall terminate upon
Executive's death.
(b) TOTAL DISABILITY. The Company may terminate Executive's employment
hereunder upon Executive becoming "Totally Disabled". For purposes of
this Agreement, Executive shall be "Totally Disabled" if Executive is
physically or mentally incapacitated so as to render Executive
incapable of performing Executive's usual and customary duties under
this Agreement. Executive's receipt of disability benefits under the
Company's long-term disability plan or receipt of Social Security
disability benefits shall be deemed conclusive evidence of Total
Disability for purpose of this Agreement; provided, however, that in
the absence of Executive's receipt of such long-term disability
benefits or Social Security benefits, the Company's Board of Directors
may, in its reasonable discretion (but based upon appropriate medical
evidence), determine that Executive is Totally Disabled.
(c) TERMINATION BY THE COMPANY FOR CAUSE. The Company may terminate
Executive's employment hereunder for "Cause" at any time after
providing written notice to Executive.
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(i) For purposes of this Agreement, the term "Cause" shall mean
any of the following: (A) conviction of a crime (including
conviction on a nolo contendere plea) involving a felony or,
in the good faith judgment of the Company's Board of
Directors, fraud, dishonesty, or moral turpitude; (B)
deliberate and continual refusal to perform employment duties
reasonably requested by the Company or an affiliate after
thirty (30) days' written notice by certified mail of such
failure to perform, specifying that the failure constitutes
cause (other than as a result of vacation, sickness, illness
or injury); (C) fraud or embezzlement determined in accordance
with the Company's normal, internal investigative procedures
consistently applied in comparable circumstances; (D) gross
misconduct or gross negligence in connection with the business
of the Company or an affiliate which has substantial effect on
the Company or the affiliate; or (E) breach of any of the
covenants set forth in Section 8 hereof.
(ii) An individual will be considered to have been terminated for
Cause if the Company determines that the individual engaged in
an act constituting Cause at any time prior to a payment date
for an award, regardless of whether the individual terminates
employment voluntarily or is terminated involuntarily, and
regardless of whether the individual's termination initially
was considered to have been for Cause.
(iii) Any determination of Cause under this Agreement shall be made
by resolution of the Company's Board of Directors adopted by
the affirmative vote of not less than a majority of the entire
membership of the Board of Directors at a meeting called and
held for that purpose and at which Executive is given an
opportunity to be heard.
(d) VOLUNTARY TERMINATION BY EXECUTIVE. Executive may terminate employment
hereunder at any time after providing ninety (90) days' written notice
to the Company, or for good reason as described in Section 7 of this
Agreement.
(e) TERMINATION BY THE COMPANY WITHOUT CAUSE. The Company may terminate
Executive's employment hereunder without Cause after December 31, 2000,
after providing written notice to Executive.
6. COMPENSATION FOLLOWING TERMINATION OF EMPLOYMENT.
In the event that Executive's employment hereunder is terminated, Executive
shall be entitled to the following compensation and benefits upon such
termination:
(a) TERMINATION BY REASON OF DEATH. In the event that Executive's
employment is terminated by reason of Executive's death, the Company
shall pay the following amounts to Executive's beneficiary or estate:
(i) Any accrued but unpaid Base Salary for services rendered to
the date of death, any accrued but unpaid expenses required to
be reimbursed under this Agreement; a pro-rata "bonus" or
incentive compensation payment to the extent payments are
awarded to similarly situated executives and paid at the same
time as similarly situated executives are paid; and any
vacation accrued to the date of death.
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(ii) Any benefits to which Executive may be entitled pursuant to
the plans, policies and arrangements referred to in Section
4(c) hereof as determined and paid in accordance with the
terms of such plans, policies and arrangements.
(iii) An amount equal to the Base Salary (at the rate in effect as
of the date of Executive's death) which would have been
payable to Executive if Executive had continued in employment
until the end of the current Employment Term (i.e., either
December 31, 2000, or December 31, 2003). Such amount shall be
paid in a single lump sum cash payment within thirty (30) days
after Executive's death.
(iv) As of the date of termination by reason of Executive's death,
stock options awarded to Executive shall be fully vested.
Executive's estate or beneficiary shall have up to one (1)
year from the date of death to exercise all such options.
(b) TERMINATION BY REASON OF TOTAL DISABILITY. In the event that
Executive's employment is terminated by reason of Executive's Total
Disability as determined in accordance with Section 5(b), the Company
shall pay the following amounts to Executive:
(i) Any accrued but unpaid Base Salary for services rendered to
the date of termination, any accrued but unpaid expenses
required to be reimbursed under this Agreement, any vacation
accrued to the date of termination. Executive shall also be
eligible for a bonus or incentive compensation payment to the
extent such awards are made to similarly situated executives,
pro-rated for the year in which Executive is terminated and
paid at the same time as similarly situated executives are
paid.
(ii) Any benefits to which Executive may be entitled pursuant to
the plans, policies and arrangements referred to in Section
4(c) hereof shall be determined and paid in accordance with
the terms of such plans, policies and arrangements.
(iii) The Base Salary (at the rate in effect as of the date of
Executive's Total Disability) which would have been payable to
Executive if Executive had continued in active employment
until the end of the current Employment Term (i.e., either
December 31, 2000, or December 31, 2003). Payment shall be
made at the same time and in the same manner as such
compensation would have been paid if Executive had remained in
active employment until the end of such period.
(iv) As of the date of termination by reason of Executive's total
disability, Executive shall be fully vested in all stock
option awards. Executive shall have up to one (1) year from
the date of termination by reason of total disability to
exercise all such options.
(c) TERMINATION FOR CAUSE. In the event that Executive's employment is
terminated by the Company for Cause pursuant to Section 5(c), the
Company shall pay the following amounts to Executive:
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(i) Any accrued but unpaid Base Salary for services rendered to
the date of termination, any accrued but unpaid expenses
required to be reimbursed under this Agreement, any vacation
accrued to the date of termination.
(ii) Any benefits to which Executive may be entitled pursuant to
the plans, policies and arrangements referred to in Section
4(c) hereof shall be determined and paid in accordance with
the terms of such plans, policies and arrangements.
(d) VOLUNTARY TERMINATION BY EXECUTIVE. In the event that Executive
terminates employment pursuant to Section 5(d), and other than for a
resignation tendered pursuant to Section 7 of this Agreement, the
Company shall pay the following amounts to Executive:
(i) Any accrued but unpaid Base Salary for services rendered to
the date of termination, any accrued but unpaid expenses
required to be reimbursed under this Agreement, any vacation
accrued to the date of termination.
(ii) Any benefits to which Executive may be entitled pursuant to
the plans, policies and arrangements referred to in Section
4(c) hereof shall be determined and paid in accordance with
the terms of such plans, policies and arrangements.
(e) TERMINATION OF FULL-TIME STATUS AFTER DECEMBER 31, 2000. In the event
that Executive elects to remain employed with the Company subsequent to
December 31, 2000, it is agreed that the employment shall be of a
part-time nature until December 31, 2003. Executive shall not be
required to work more than fifty percent (50%) of the three (3)
calendar years (2001, 2002 and 2003), and shall report to the President
of the Company or his designee. Provided the Executive is willing to
work and remains available to work as directed, the Company will pay to
the Executive the following amount(s) for the three (3) year part-time
period:
(i) An amount equal to seventy-five percent (75%) of Executive's
base pay for the highest year of the preceding three (3) year
period (1997, 1998 and 1999).
(ii) The Company will continue at its expense, for Executive and
Executive's spouse and dependents, all health-related benefit
plans, as more fully described in Section 6(e)(iv) of this
Agreement.
(iii) The Company completely at its expense will continue for
Executive and Executive's spouse and dependents, all health
benefit plans, programs or arrangements, whether group or
individual, in which Executive was entitled to participate at
any time during the twelve-month period prior to the date of
termination, until the earliest to occur of (A) three (3)
years after the date of termination of full-time status; (B)
Executive's death (provided that benefits payable to
Executive's beneficiaries shall not terminate upon Executive's
death); or (C) with respect to any particular plan, program or
arrangement, the date Executive becomes covered by a
comparable benefit by a subsequent employer. In the event that
Executive's continued participation in any such plan, program,
or arrangement of the Company is prohibited, the Company will
arrange to provide Executive with benefits substantially
similar to those which
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Executive would have been entitled to receive under such plan,
program, or arrangement, for such period.
(iv) If Executive is unavailable to work as described herein at
Section 6(e) above for a sixty (60) day period, the Company
will provide written notice of its intent to terminate the
Agreement. The Executive will be given thirty (30) days to
respond and to correct the situation. If the issue remains
unresolved, the Company may elect to terminate the Agreement
and will pay Executive through the end of the thirty (30) day
response period, as described herein.
(f) NO OTHER BENEFITS OR COMPENSATION. Except as may be provided under this
Agreement, under the terms of any incentive compensation, employee
benefit, or fringe benefit plan applicable to Executive at the time of
Executive's termination or resignation of employment, Executive shall
have no right to receive any other compensation, or to participate in
any other plan, arrangement or benefit, with respect to future periods
after such termination or resignation.
(g) SUSPENSION OR TERMINATION OF BENEFITS AND COMPENSATION. In the event
that the Company, in its sole discretion determines that, without the
Company's express written consent, Executive has
(i) directly or indirectly engaged in, assisted or have any active
interest or involvement whether as an employee, agent,
consultant, creditor, advisor, officer, director, stockholder
(excluding holding of less than 1% of the stock of a public
company), partner, proprietor, or any type of principal
whatsoever, in any person, firm, or business entity which is
directly or indirectly competitive with the Company or any of
its affiliates, or
(ii) directly or indirectly, for or on behalf of any person, firm,
or business entity which is directly or indirectly competitive
with the Company or any of its affiliates (A) solicited or
accepted from any person or entity who is or was a client of
the Company during the term of Executive's employment
hereunder or during any of the twelve calendar months
preceding or following the termination of Executive's
employment any business for services similar to those rendered
by the Company, (B) requested or advised any present or future
customer of the Company to withdraw, curtail or cancel its
business dealings with the Company, or (C) requested or
advised any employee of the Company to terminate his or her
employment with the Company;
the Company shall have the right to suspend or terminate any or all
remaining benefits payable pursuant to Section 6 of this Agreement.
Such suspension or termination of benefits shall be in addition to and
shall not limit any and all other rights and remedies that the Company
may have against Executive.
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7. RESIGNATION BY EXECUTIVE FOR GOOD REASON AND COMPENSATION PAYABLE FOLLOWING
CHANGE IN CONTROL.
(a) RESIGNATION FOR GOOD REASON FOLLOWING CHANGE IN CONTROL. In the event a
"Change in Control" occurs, Executive will be paid the compensation
described in this Section 7 if Executive resigns or is terminated (both
a "resignation" and "termination" being referred to as "termination"
for the purposes of this Section 7) from employment with the Company at
any time prior to December 31, 2000, or at any time prior to the six
(6) month anniversary of the date of the Change in Control, whichever
date occurs earlier, following the occurrence of any of the following
events:
(i) without Executive's express written consent, the assignment to
Executive of any duties inconsistent with Executive's
positions, duties, responsibilities and status with the
Company immediately before a Change in Control, or a change in
Executive's reporting, responsibilities, titles or offices as
in effect immediately before a Change in Control, or any
removal of Executive from, or any failure to re-elect
Executive to, any of such positions, except in connection with
the termination of Executive's employment as a result of
death, or by the Company for Disability or Cause, or by
Executive other than for the reasons described in this Section
7(a);
(ii) a reduction by the Company in Executive's Base Salary as in
effect immediately before a Change in Control plus all
increases therein subsequent thereto;
(iii) the failure of the Company substantially to maintain and to
continue Executive's participation in the Company's benefit
plans as in effect immediately before a Change in Control and
with all improvements therein subsequent thereto (other than
those plans or improvements that have expired thereafter in
accordance with their original terms), or the taking of any
action which would materially reduce Executive's benefits
under any of such plans or deprive Executive of any material
fringe benefit enjoyed by Executive immediately before a
Change in Control, unless such reduction or termination is
required by law;
(iv) the failure of the Company to provide Executive with an
appropriate adjustment to compensation such as a lump sum
relocation bonus, salary adjustment and/or housing allowance
so that Executive can purchase comparable primary housing if
required to relocate (it being the intention of this Section
7[a][iv] to keep the Executive "whole" if required to
relocate). In this regard, comparable housing shall be
determined by comparing factors such as location (taking into
account, by way of example, items such as the value of the
surrounding neighborhood, reputation of the public school
district, if applicable, security and proximity to Executive's
place of work), quality of construction, design, age, size of
the housing and the ratio of the monthly payments including
principle, interest, taxes and insurance to the Executive's
take home pay, to housing most recently owned by Executive
prior to, or as of the effective date of the change of
control;
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(v) the failure by the Company to pay Executive any portion of
Executive's current compensation, or any portion of
Executive's compensation deferred under any plan, agreement or
arrangement of or with the Company, within seven (7) days of
the date such compensation is due; or
(vi) the failure by the Company to obtain an assumption of, and
agreement to perform the obligations of the Company under this
Agreement by any successor to the Company.
(b) COMPENSATION PAYABLE. In the event that Executive terminates employment
pursuant to Section 7(a), the Company shall pay the following amounts
to Executive:
(i) Any accrued but unpaid Base Salary for services rendered to
the date of termination, any accrued but unpaid expenses
required to be reimbursed under this Agreement, any vacation
accrued to the date of termination.
(ii) Any benefits to which Executive may be entitled pursuant to
the plans, policies and arrangements referred to in Section 4c
hereof, shall be determined and paid in accordance with the
terms of such plans, policies and arrangements.
(iii) An amount equal to $1.00 less than three (3) times Executive's
"base amount" within the full meaning of Section 280G of the
Internal Revenue Code. Such amount shall be paid to Executive
in a single lump sum cash payment within five (5) business
days after the effective date of Executive's termination.
(iv) Executive will be 100% vested in all benefits, awards, and
grants (including stock options) accrued but unpaid as of the
date of termination under any non-qualified pension plan,
supplemental and/or incentive compensation or bonus plans, in
which Executive was a participant as of the date of
termination. Executive shall also be eligible for a bonus or
incentive compensation payment (the "bonus payment"), payable
at 100% of the maximum bonus available to Executive, pro-rated
as of the effective date of the termination. The bonus payment
shall be payable within five (5) days after the effective date
of Employee's termination. Employee shall have until the
expiration date shown on the stock option award in which to
exercise the options which have vested pursuant to this
section.
Except as may be provided under this Section 7 or under the terms of
any incentive compensation, employee benefit, or fringe benefit plan
applicable to Executive at the time of Executive's resignation from
employment, Executive shall have no right to receive any other
compensation, or to participate in any other plan, arrangement or
benefit, with respect to future periods after such resignation or
termination.
(c) CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY. In the event that any
portion of the benefits payable under this Agreement, and any other
payments and benefits under any other agreement with, or plan of the
Company to or for the benefit of the Executive (in aggregate, "Total
Payments") constitute an "excess parachute payment" within the meaning
of Section 280G of the Internal Revenue Code (the "Code"), then the
Company shall pay the Executive as promptly as practicable following
such determination an additional amount (the "Gross-up
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Payment") calculated as described below to reimburse the Executive on
an after-tax basis for any excise tax imposed on such payments under
Section 4999 of the Code. The Gross-up Payment shall equal the amount,
if any, needed to ensure that the net parachute payments (including the
Gross-up Payment) actually received by the Executive after the
imposition of federal and state income, employment and excise taxes
(including any interest or penalties imposed by the Internal Revenue
Service), are equal to the amount that the Executive would have netted
after the imposition of federal and state income and employment taxes,
had the Total Payments not been subject to the taxes imposed by Section
4999. For purposes of this calculation, it shall be assumed that the
Executive's tax rate will be the maximum federal rate to be computed
with regard to Section 1(g) of the Code.
In the event that the Executive and the Company are unable to agree as
to the amount of the Gross-up Payment, if any, the Company shall select
a law firm or accounting firm from among those regularly consulted
(during the twelve-month period immediately prior to a
Change-in-Control) by the Company regarding federal income tax maters
and such law firm or accounting firm shall determine the amount of
Gross-up Payment and such determination shall be final and binding upon
the Executive and the Company.
(d) CHANGE IN CONTROL. For purposes of this Agreement, "Change in Control"
means the occurrence of any of the following events:
(i) Any transfer to, assignment to, or any acquisition by any
person, corporation or other entity, or group thereof, of the
beneficial ownership, within the meaning of Section 13(d) of
the Securities Exchange Act of 1934, of any securities of the
Company, which transfer, assignment or acquisition results in
such person, corporation, entity, or group thereof, becoming
the beneficial owner, directly or indirectly, of securities of
the Company representing 25 percent (25%) or more of the
combined voting power of the Company's then outstanding
securities; or
(ii) As a 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 any successor to the
Company.
8. RESTRICTIVE COVENANTS
(a) COMPETITIVE ACTIVITY. Executive covenants and agrees that at all times
during Executive's period of employment with the Company, and during
the period that payments are made to Executive pursuant to Section 6 of
this Agreement, Executive will not engage in, assist, or have any
active interest or involvement, whether as an employee, agent,
consultant, creditor, advisor, officer, director, stockholder
(excluding holding of less than 1% of the stock of a public company),
partner, proprietor or any type of principal whatsoever in any person,
firm, or business entity which, directly or indirectly, is engaged in
the same business as that conducted and carried on by the Company,
without the Company's specific written consent to do so. Executive
further agrees that for a period of one (1) year after the date
payments made to Executive pursuant to Section 6 of this Agreement
cease, or for a period of two (2)
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years following the date of termination, whichever is later, Executive
will not, directly or indirectly, within 75 miles of any operating
location of any affiliate of the Company, engage in, assist, or have
any active interest or involvement, whether as an employee, agent,
consultant, creditor, advisor, officer, director, stockholder
(excluding holding of less than 1% of the stock of a public company),
partner, proprietor or any type of principal whatsoever in any person,
firm, or business entity which, directly or indirectly, is engaged in
the same business as that conducted and carried on by the Company or
any of its affiliated companies, without the Company's specific written
consent to do so.
(b) NON-SOLICITATION. Executive covenants and agrees that at all times
during Executive's period of employment with the Company, and for a
period of one (1) year after the date payments made to Executive
pursuant to Section 6 of this Agreement cease, or two (2) years after
the date of termination of the Executive's employment, whichever date
is later, whether such termination is voluntary or involuntary by
wrongful discharge, or otherwise, Executive will not directly or
indirectly (i) induce any customers of the Company or corporations
affiliated with the Company to patronize any similar business which
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) directly or
indirectly 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; 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 corporations
affiliated with the Company.
(c) NON-DISPARAGEMENT. Executive covenants and agrees that Executive 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.
(d) PROTECTED INFORMATION. Executive recognizes and acknowledges that
Executive 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 customer lists, route sheets, business
opportunities, marketing or business diversification plans, business
development and bidding techniques, methods and processes, financial
data and the like (collectively, the "Protected Information").
Executive therefore covenants and agrees that Executive 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.
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9. ENFORCEMENT OF COVENANTS.
(a) TERMINATION OF EMPLOYMENT AND FORFEITURE OF COMPENSATION. Executive
agrees that any breach by Executive of any of the covenants set forth
in Section 8 hereof during Executive's employment by the Company, shall
be grounds for immediate dismissal of Executive and forfeiture of any
accrued and unpaid salary, bonus, commissions or other compensation of
such Executive as liquidated damages, which shall be in addition to and
not exclusive of any and all other rights and remedies the Company may
have against Executive.
(b) RIGHT TO INJUNCTION. Executive acknowledges that a breach of the
covenants set forth in Section 8 hereof will cause irreparable damage
to the Company with respect to which the Company's remedy at law for
damages will be inadequate. Therefore, in the event of breach of
anticipatory breach of the covenants set forth in this section by
Executive, Executive and the Company agree that the Company shall be
entitled to the following particular forms of relief, in addition to
remedies otherwise available to it at law or equity; (i) injunctions,
both preliminary and permanent, enjoining or retraining such breach or
anticipatory breach and Executive hereby consents to the issuance
thereof forthwith and without bond by any court of competent
jurisdiction; and (ii) recovery of all reasonable sums expended and
costs, including reasonable attorney's fees, incurred by the Company to
enforce the covenants set forth in this section.
(c) SEPARABILITY OF COVENANTS. The covenants contained in Section 8 hereof
constitute a series of separate covenants, one for each applicable
State in the United States and the District of Columbia, and one for
each applicable foreign country. If in any judicial proceeding, a court
shall hold that any of the covenants set forth in Section 8 exceed the
time, geographic, or occupational limitations permitted by applicable
laws, Executive and the Company agree that such provisions shall and
are hereby reformed to the maximum time, geographic, or occupational
limitations permitted by such laws. Further, in the event a court shall
hold unenforceable any of the separate covenants deemed included
herein, then such unenforceable covenant or covenants shall be deemed
eliminated from the provisions of this Agreement for the purpose of
such proceeding to the extent necessary to permit the remaining
separate covenants to be enforced in such proceeding. Executive and the
Company further agree that the covenants in Section 8 shall each be
construed as a separate agreement independent of any other provisions
of this Agreement, and the existence of any claim or cause of action by
Executive against the Company whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the
Company of any of the covenants of Section 8.
10. DISPUTES AND PAYMENT OF ATTORNEY'S 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
Executive (and Executive 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 Executive) Executive's costs
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and reasonable attorney's fees (including expenses of investigation and
disbursements for the fees and expenses of experts, etc.) incurred by Executive
in connection with any such dispute or any litigation, (a) provided that
Executive shall repay any such amounts paid or advanced if Executive is not the
prevailing party with respect to any dispute or litigation arising under
Sections 5c or 8 of this Agreement, or (b) regardless of whether Executive 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, Executive did not initiate frivolously such litigation. Under no
circumstances shall Executive be obligated to pay or reimburse the Company for
any attorneys' fees, costs or expenses incurred by the Company. The provisions
of this Section 10 shall survive the expiration or termination of this Agreement
and of Executive's employment hereunder.
11. WITHHOLDING OF TAXES.
The Company may withhold from any compensation and benefits payable under this
Agreement all applicable federal, state, local, or other taxes.
12. NON-DISCLOSURE OF AGREEMENT TERMS.
Executive agrees that Executive will not disclose the terms of this Agreement to
any third party other than Executive's immediate family, attorney, accountants,
or other consultants or advisors or except as may be required by any
governmental authority.
13. SOURCE OF PAYMENTS.
All payments provided under this Agreement, other than payments made pursuant to
a plan which provides otherwise, shall be paid from the general funds of the
Company, and no special or separate fund shall be established, and no other
segregation of assets made, to assure payment. Executive shall have no right,
title or interest whatever in or to any investments which the Company may make
to aid the Company in meeting its obligations hereunder. To the extent that any
person acquires a right to receive payments from the Company hereunder, such
right shall be no greater than the right of an unsecured creditor of the
Company.
14. ASSIGNMENT.
Except as otherwise provided in this Agreement, this Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
heirs, representatives, successors and assigns. This Agreement shall not be
assignable by Executive, and shall be assignable by the Company only to any
financially solvent corporation or other entity resulting from the
reorganization, merger or consolidation of the Company with any other
corporation or entity or any corporation or entity to or with which the
Company's business or substantially all of its business or assets may be sold,
exchanged or transferred, and it must be so assigned by the Company to, and
accepted as binding upon it by, such other corporation or entity in connection
with any such reorganization, merger, consolidation, sale, exchange or transfer
(the provisions of this sentence also being applicable to any successive such
transaction).
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15. ENTIRE AGREEMENT; AMENDMENT.
This Agreement shall supersede any and all existing oral or written agreements,
representations, or warranties between Executive and the Company or any of its
subsidiaries or affiliated entities relating to the terms of Executive's
employment by the Company. It may not be amended except by a written agreement
signed by both parties.
16. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Georgia applicable to agreements made and to be performed in that
State, without regard to its conflict of laws provisions.
17. NOTICES.
Any notice, consent, request or other communication made or given in connection
with this Agreement shall be in writing and shall be deemed to have been duly
given when delivered or mailed by registered or certified mail, return receipt
requested, or by facsimile or by hand delivery, to those listed below at their
following respective addresses or at such other address as each may specify by
notice to the others:
To the Company:
Waste Management, Inc.
1001 Fannin, Suite 4000
Houston, Texas 77002
Attention: Corporate Secretary
To Executive:
At the address for Executive set forth below.
18. MISCELLANEOUS.
(a) WAIVER. The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver
thereof or deprive that party of the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement.
(b) SEPARABILITY. Subject to Section 9 hereof, if any term or provision of
this Agreement is declared illegal or unenforceable by any court of
competent jurisdiction and cannot be modified to be enforceable, such
term or provision shall immediately become null and void, leaving the
remainder of this Agreement in full force and effect.
(c) HEADINGS. Section headings are used herein for convenience of reference
only and shall not affect the meaning of any provision of this
Agreement.
(d) RULES OF CONSTRUCTION. Whenever the context so requires, the use of the
singular shall be deemed to include the plural and vice versa.
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(e) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, and such counterparts will together constitute but one
Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
WASTE MANAGEMENT, INC.
By: /s/ Rodney R. Proto Date:
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Name:
--------------------------------
Title:
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EXECUTIVE
/s/ Miller J. Mathews, Jr. Date: October 1, 1998
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Address: 566 Gramercy Drive
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Marietta, GA 30068
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