EMPLOYMENT AGREEMENT
WHEELABRATOR TECHNOLOGIES, INC., for and on behalf of its affiliated
corporations (collectively referred to as the "Company") and RICHARD FELAGO (the
"Employee") hereby enter into this EMPLOYMENT AGREEMENT ("Agreement") dated as
of May 25, 1999, as follows:
1. EMPLOYMENT.
The Company shall employ Employee, and Employee shall be employed by the Company
upon the terms and subject to the conditions set forth in this Agreement.
2. TERM OF EMPLOYMENT.
The period of Employee's employment under this Agreement shall begin as of May
25, 1999, and shall continue for a period of three (3) years thereafter (the
"Initial Term") and shall be automatically renewed for successive one (1) year
periods thereafter, unless Employee's employment is terminated in accordance
with Section 6 below.
3. DUTIES AND RESPONSIBILITIES.
(a) Employee shall serve as President, Wheelabrator Technologies, Inc. In
such capacity, Employee shall perform such duties as may be assigned to
Employee from time to time by the Company.
(b) Employee shall faithfully serve the Company and/or its affiliated
corporations, devote Employee'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 Employee's abilities.
(c) Employee 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 Employee
a base salary at the annual rate of Two Hundred Fifty Thousand
($250,000) 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 employees.
(b) EXPENSE REIMBURSEMENT. The Company shall promptly reimburse Employee
for the ordinary and necessary business expenses incurred by Employee
in the performance of Employee's duties hereunder in accordance with
the Company's
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customary practices applicable to employees, provided that such
expenses are incurred and accounted for in accordance with the
Company's policy.
(c) BENEFIT PLANS. Employee 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 benefit plan or arrangement generally made available by the
Company to employees of similar status and responsibilities
(hereinafter referred to as "similarly situated employees").
(d) INCENTIVE/BONUS. Employee shall be eligible for a bonus or incentive
compensation payment ("bonus"). Qualification for the bonus shall be
pursuant to the applicable Bonus Plan in effect for the year in which
the bonus is earned.
(e) STOCK OPTIONS. Employee shall be awarded Twenty-Five Thousand (25,000)
WM stock options, subject to the approval of the Compensation Committee
of the Board of Directors. The award, vesting and exercise of all
options shall be subject to the provisions of the Waste Management,
Inc. Stock Incentive Plan.
5. TERMINATION OF EMPLOYMENT.
Employee's employment hereunder may be terminated under the following
circumstances:
(a) DEATH. Employee's employment hereunder shall terminate upon Employee's
death.
(b) TOTAL DISABILITY. The Company may terminate Employee's employment
hereunder upon Employee's becoming "Totally Disabled". For purposes of
this Agreement, Employee shall be "Totally Disabled" if Employee is
physically or mentally incapacitated so as to render Employee incapable
of performing Employee's usual and customary duties under this
Agreement. Employee'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 Employee's receipt of such long-term disability benefits
or Social Security benefits, the Company may, in its reasonable
discretion (but based upon appropriate medical evidence), determine
that Employee is Totally Disabled.
(c) TERMINATION BY THE COMPANY FOR CAUSE. The Company may terminate
Employee's employment hereunder for "Cause" at any time after providing
written notice to Employee.
(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, 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
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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 the Company after giving Employee a reasonable opportunity
to be heard.
(d) VOLUNTARY TERMINATION BY EMPLOYEE. Employee may terminate employment
hereunder at any time after providing ninety (90) days' written notice
to the Company.
(e) TERMINATION BY THE COMPANY WITHOUT CAUSE. The Company may terminate
Employee's employment hereunder without Cause at any time after
providing written notice to Employee.
6. COMPENSATION FOLLOWING TERMINATION OF EMPLOYMENT.
In the event that Employee's employment hereunder is terminated, Employee shall
be entitled to the following compensation and benefits upon such termination:
(a) TERMINATION BY REASON OF DEATH. In the event that Employee's employment
is terminated by reason of Employee's death, the Company shall pay the
following amounts to Employee'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, and any vacation accrued
to the date of death.
(ii) Any benefits to which Employee 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 Employee's death) which would have been payable
to Employee if Employee had continued in employment until the
end of the 30 day period beginning on
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the date of Employee's death. Such amount shall be paid in a
single lump sum cash payment within thirty (30) days after
Employee's death.
(b) TERMINATION BY REASON OF TOTAL DISABILITY. In the event that Employee's
employment is terminated by reason of Employee's Total Disability as
determined in accordance with Section 5(b), the Company shall pay the
following amounts to Employee:
(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. Employee shall also be
entitled to 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 Employee 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) An amount equal to
(a) the Base Salary (at the rate in effect as of the date
of Employee's Total Disability) which would have been
payable to Employee if Employee had continued in
active employment until the end of the 12-month
period beginning on the date of Employee's
termination; reduced by
(b) the maximum annual amount of the long term disability
benefits payable to Employee under the Company's
long-term disability plan as determined prior to the
reduction of such benefits under the terms of the
plan for other disability income.
Payment shall be made at the same time and in the same manner
as such compensation would have been paid if Employee had
remained in active employment until the end of such period.
(c) TERMINATION FOR CAUSE OR VOLUNTARY TERMINATION BY EMPLOYEE. In the
event that Employee's employment is terminated by the Company for Cause
pursuant to Section 5(c), or Employee terminates employment pursuant to
Section 5(d), the Company shall pay the following amounts to Employee:
(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.
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(ii) Any benefits to which Employee 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) TERMINATION BY THE COMPANY WITHOUT CAUSE. In the event that Employee's
employment is terminated by the Company pursuant to Section 5(e) for
reasons other than death, Total Disability or Cause, the Company shall
pay the following amounts to Employee:
(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 Employee 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
Employee's termination) which would have been payable to
Employee if Employee had continued in active employment until
the later of: (a) the period ending on the last day of the
Initial Term; or (b) the end of the 12-month period beginning
on the date of Employee's termination. Payment shall be made
at the same time and in the same manner as such compensation
would have been paid if Employee had remained in active
employment until the end of such period. The Employee shall
also be eligible for a bonus or incentive compensation
payment, to the extent bonuses are paid to similarly situated
employees, pro-rated for the year in which the Employee is
terminated, and paid at the same time as similarly situated
employees are paid.
(iv) The Company, completely at its expense, will continue for
Employee and Employee's spouse and dependents, group health
plans, programs or arrangements, in which Employee was
entitled to participate at any time during the twelve-month
period prior to the date of termination, until the earlier of:
(a) last day of period during which Employee receives payment
in accordance with clause (iii) above; (b) Employee's death
(provided that benefits payable to Employee's beneficiaries
shall not terminate upon Employee's death); or (c) with
respect to any particular plan, program or arrangement, the
date Employee becomes covered by a comparable benefit provided
by a subsequent employer.
(e) 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 Employee at the time of
Employee's termination or resignation of employment, Employee shall
have no right to receive any other
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compensation, or to participate in any other plan, arrangement or
benefit, with respect to future periods after such termination or
resignation.
(F) 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, Employee 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 Employee's employment hereunder
or during any of the twelve calendar months preceding or
following the termination of Employee'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 Employee.
7. RESTRICTIVE COVENANTS
(a) COMPETITIVE ACTIVITY. Employee covenants and agrees that at all times
during Employee's period of employment with the Company, and while
Employee is receiving payments pursuant to Section 6 of this Agreement,
Employee will not, directly or indirectly, 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. Furthermore,
for a period of one (1) year after the date of termination of
Employee's employment, whether such termination is voluntary or
involuntary, by wrongful discharge, or otherwise, or one (1) year
following the cessation of payments made pursuant to Section 6 of this
Agreement, or for a period of one (1) year following the date of
termination, whichever date is later, Employee will not directly or
indirectly, within 75 miles of the principal place of
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business of the Company, the principal place of business of any
corporation or other entity owned, controlled by (or otherwise
affiliated with) the Company by which Employee may also be employed or
served by Employee, or any other geographic location in which Employee
has specifically represented the interests of the Company or such other
affiliated entity, during the twelve (12) months prior to the
termination of Employee's employment, 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.
(b) NON-SOLICITATION. Employee covenants and agrees that at all times
during Employee's period of employment with the Company, and for a
period of one (1) year after the date of termination of Employee's
employment, whether such termination is voluntary or involuntary by
wrongful discharge, or otherwise, or the date of the cessation of
payments made to the Employee pursuant to Section 6 of this Agreement,
whichever date is later. Employee 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; (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; or (v)
individually of through any person, firm, association or corporation
with which Employee is now or may hereafter become associated, cause,
solicit, entice, or induce any present or future employee of the
Company, or any corporation affiliated with the Company to leave the
employ of the Company, or such other corporation to accept employment
with, or compensation from, the Employee or any such person, firm,
association or corporation without the prior written consent of the
Company.
(c) NON-DISPARAGEMENT. Employee covenants and agrees that Employee shall
not engage in any pattern of conduct that involves the making or
publishing of written or oral statements or remarks (including, without
limitation, the repetition or distribution of derogatory rumors,
allegations, negative reports or comments) which are disparaging,
deleterious or damaging to the integrity, reputation or good will of
the Company, its management, or of management of corporations
affiliated with the Company.
(c) PROTECTED INFORMATION. Employee recognizes and acknowledges that
Employee 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
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records relating to operation, finance, accounting, sales, personnel
and management, (ii) policies and matters relating particularly to
operations such as customer service requirements, costs of providing
service and equipment, operating costs and pricing matters, and (iii)
various trade or business secrets, including business opportunities,
marketing or business diversification plans, business development and
bidding techniques, methods and processes, financial data and the like
(collectively, the "Protected Information"). Employee therefore
covenants and agrees that Employee 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.
8. ENFORCEMENT OF COVENANTS.
(a) TERMINATION OF EMPLOYMENT AND FORFEITURE OF COMPENSATION. Employee
agrees that any breach by Employee of any of the covenants set forth in
Section 7 hereof during Employee's employment by the Company, shall be
grounds for immediate dismissal of Employee and forfeiture of any
accrued and unpaid salary, bonus, commissions or other compensation of
such Employee 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 Employee.
(b) RIGHT TO INJUNCTION. Employee acknowledges that a breach of the
covenants set forth in Section 7 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
Employee, Employee 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 restraining such breach or
anticipatory breach and Employee 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 7 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 7 exceed the
time, geographic, or occupational limitations permitted by applicable
laws, Employee 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
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proceeding. Employee and the Company further agree that the covenants
in Section 7 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 Employee 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 7.
9. WITHHOLDING OF TAXES.
The Company may withhold from any compensation and benefits payable under this
Agreement all applicable federal, state, local, or other taxes.
10. NON-DISCLOSURE OF AGREEMENT TERMS.
Employee agrees that Employee will not disclose the terms of this Agreement to
any third party other than Employee's immediate family, attorney, accountants,
or other consultants or advisors or except as may be required by any
governmental authority.
11. 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. Employee 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.
12. 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 Employee.
13. ENTIRE AGREEMENT; AMENDMENT.
This Agreement shall supersede any and all existing oral or written agreements,
representations, or warranties between Employee and the Company or any of its
subsidiaries or affiliated entities relating to the terms of Employee's
employment by the Company. It may not be amended except by a written agreement
signed by both parties.
14. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the laws of
the State of New Hampshire, applicable to agreements made and to be performed in
that State, without regard to its conflict of laws provisions.
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15. 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 Employee: At the address for Employee set forth below.
16. 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 8 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.
(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.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year first above written.
WHEELABRATOR TECHNOLOGIES, INC.
By: /s/ Rodney R. Proto
---------------------------
Name:
-------------------------
Title: President/COO
------------------------
Date:
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EMPLOYEE
/s/ Richard T. Felago
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Date:
-------------------------
Address:
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Employment Agreement - Wheelabrator Technologies Inc. and Richard Felago
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