exv10w1



 






Exhibit 10.1




EMPLOYMENT AGREEMENT




     This EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered into on this 27th day of March
2006, but as effective as of the date set forth herein, by and between Waste Management, Inc. (the
“Company”), and James Schultz (the “Executive”).



     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.



     Executive acknowledges and represents that, any and all prior employment agreements, including
without limitation certain Employment Agreement between he and the Company dated November 1, 2000,
is terminated, and that any and all obligations of the Company created thereunder, whether express
or implied, are null and void and of no further force or effect, and that the only rights,
obligations and duties between the Company and Executive are those expressly set forth in this
Agreement.



     2. Term of Employment.



     The period of Executive’s employment under this Agreement shall commence on October 30, 2005
(“Employment Date”), and shall continue for a period of two (2) years, and shall automatically be
renewed for successive one (1) year periods on each anniversary of the Employment Date thereafter,
unless Executive’s employment is terminated in accordance with Section 5 below. The period during
which Executive is employed hereunder shall be referred to as the “Employment Period.”



     3. Duties and Responsibilities.



     (a) Executive shall serve as the Senior Vice President Employee and Customer Engagement. In
such capacity, Executive shall perform such duties and have the power, authority, and functions
commensurate with such position in similarly-sized public companies, and have and possess such
other authority and functions consistent with such position as may be assigned to Executive from
time to time by the Chief Executive Officer, President, Chief Operating Officer or the Board of
Directors (the “Board”) of the Company.



     (b) Executive shall devote substantially all of his working time, attention and energies to
the business of the Company, and its affiliated entities. 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 10 of this Agreement), be involved in charitable and
professional activities, and, with the prior written consent of the Board, serve on boards of other
for profit entities, provided such activities do not materially interfere with the performance of
his duties hereunder (however, the Board does not typically allow officers to serve on more than
one public company board at a time).



 









 





     4. Compensation and Benefits.



     (a) Base Salary. During the Employment Period, the Company shall pay Executive a base salary at
the annual rate of Three Hundred Fifteen Thousand Four Hundred Sixteen Dollars ($315,416.00) 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 its
executive officers. Once increased, Base Salary shall not be reduced.



     (b) Annual Bonus. During the Employment Period, Executive will be entitled to participate in
an annual incentive compensation plan of the Company, as established by the Compensation Committee
of the Board from time to time. The Executive’s target annual bonus will be sixty percent (60%) of
his Base Salary in effect for such year (the “Target Bonus”), and his actual annual bonus may range
from 0% to 120% of Base Salary (i.e., a maximum possible bonus of two times the Target Bonus), and
will be determined based upon (i) the achievement of certain corporate performance goals, as may be
established and approved by from time to time by the Compensation Committee of the Board, and (ii)
the achievement of personal performance goals as may be established by Executive’s immediate
supervisor. The annual bonus for calendar year 2005 will be paid in 2006, if earned, at the same
time as similarly situated executive employees receive or would otherwise receive their bonuses,
subject to the terms of the annual incentive program generally applicable to similarly situated
employees.



     (c) Benefit Plans and Vacation. Subject to the terms of such plans, Executive shall be
eligible to participate in or receive benefits under any pension plan, profit sharing plan, salary
deferral plan, medical and dental benefits plan, life insurance plan, short-term and long-term
disability plans, or any other health, welfare or fringe benefit plan, generally made available by
the Company to similarly-situated executive employees. The Company shall not be obligated to
institute, maintain, or refrain from changing, amending, or discontinuing any benefit plan, or
perquisite, so long as such changes are similarly applicable to similarly situated employees
generally.



     During the Employment Period, Executive shall be entitled to vacation each year in accordance
with the Company’s policies in effect from time to time, but in no event less than four (4) weeks
paid vacation per calendar year.



     (d) 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 its executive officers.



     (e) Other Perquisites. Executive shall be entitled to all perquisites provided to Senior Vice
Presidents of the Company as approved by the Compensation Committee of the Board, and as they may
exist from time to time, including the following:




	 	(i)	 	Automobile allowance at the annual rate of Twelve Thousand Dollars
($12,000.00), payable in accordance with the Company’s standard payroll





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	 	 	 	practice for its executive officers and prorated in any year that Executive does not
work a full calendar year;
	 
	 	(ii)	 	Financial planning services at actual cost, and not to exceed Fifteen Thousand
Dollars ($15,000.00) annually;
	 
	 	(iii)	 	Additional one-time financial planning services at actual cost, not to exceed
$20,000, for services in preparation for voluntary retirement (for such purposes
voluntary retirement means retirement from the Company after attainment of both (x) the
age of 55 and (y) a sum of years of services with the Company plus age equal to 65 or
greater);
	 
	 	(iv)	 	Social organization initiation fees and dues with a benefit of a one-time
initiation fee at actual cost (not to exceed ten percent (10%) of Executive’s Base
Salary), and monthly dues at actual cost (not to exceed $500 per month); and
	 
	 	(v)	 	An annual physical examination on a program designated by the Company.





     5. Termination of Employment.



     Executive’s employment hereunder may be terminated during the Employment Period 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
considered “Totally Disabled” if Executive has been physically or mentally incapacitated so as to
render Executive incapable of performing the essential functions of Executive’s position with or
without reasonable accommodation. 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.



     (c) Termination by the Company for Cause. The Company may terminate Executive’s employment
hereunder for “Cause” at any time after providing a Notice of Termination for Cause to Executive.




	 	(i)	 	For purposes of this Agreement, the term “Cause” means any of the following:
(A) willful or deliberate and continual refusal to perform Executive’s employment
duties reasonably requested by the Company after receipt of written notice to Executive
of such failure to perform, specifying such failure (other than as a result of
Executive’s sickness, illness or injury) and Executive fails to cure such
nonperformance within ten (10) days of receipt of said written notice; (B) breach of
any statutory or common law duty of loyalty to the Company; (C) has been




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	 	 	 	convicted of, or pleaded nolo contendre to, any felony; (D) willfully or
intentionally caused material injury to the Company, its property, or its assets;
(E) disclosed to unauthorized person(s) proprietary or confidential information of
the Company; (F) any material violation or a repeated and willful violation of
Company policies or procedures, including but not limited to, the Company’s Code of
Business Conduct and Ethics (or any successor policy) then in effect; or (G) breach
of any of the covenants set forth in Section 10 hereof.
	 
	 	(ii)	 	For purposes of this Agreement, the phrase “Notice of Termination for Cause”
shall mean a written notice that shall indicate the specific termination provision in
Section 5(c)(i) relied upon, and shall set forth in reasonable detail the facts and
circumstances which provide the basis for termination for Cause.





     (d) Voluntary Termination by Executive. Executive may terminate his employment hereunder with
or without Good Reason at any time upon written notice to the Company.




	 	(i)	 	A termination for “Good Reason” means a resignation of employment by Executive
by written notice (“Notice of Termination for Good Reason”) given to the Company’s
Chief Executive Officer or President within ninety (90) days after the occurrence of
the Good Reason event, unless such circumstances are substantially corrected prior to
the date of termination specified in the Notice of Termination for Good Reason. For
purposes of this Agreement, “Good Reason” shall mean the occurrence or failure to cause
the occurrence, as the case may be, without Executive’s express written consent, of any
of the following circumstances: (A) the Company substantially changes Executive’s core
duties or removes Executive’s responsibility for those core duties, so as to
effectively cause Executive to no longer be performing the duties of his position
(except in each case in connection with the termination of Executive’s employment for
Death, Total Disability, or Cause, or temporarily as a result of Executive’s illness or
other absence); provided that if the Company becomes a fifty percent or more subsidiary
of any other entity, Executive shall be deemed to have a substantial change in the core
duties of his position unless he is also the equivalent of a Senior Vice-President of
the Company or such other successor entity of the ultimate parent entity; (B) removal
or the non-reelection of the Executive from the officer position with the Company
specified herein, or removal of the Executive from any of his then officer positions;
(C) any material breach by the Company of any provision of this Agreement, including
without limitation Section 10 hereof; or (D) failure of any successor to the Company
(whether direct or indirect and whether by merger, acquisition, consolidation or
otherwise) to assume in a writing delivered to Executive upon the assignee becoming
such, the obligations of the Company hereunder; or (E) the reassignment of Executive to
a geographic location more than fifty (50) miles from his then business office
location.
	 
	 	(ii)	 	A “Notice of Termination for Good Reason” shall mean a notice that shall
indicate the specific termination provision relied upon and shall set forth in




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	 	 	 	reasonable detail the facts and circumstances claimed to provide a basis for
Termination for Good Reason. The failure by Executive to set forth in the Notice of
Termination for Good Reason any facts or circumstances which contribute to the
showing of Good Reason shall not waive any right of Executive hereunder or preclude
Executive from asserting such fact or circumstance in enforcing his rights
hereunder. The Notice of Termination for Good Reason shall provide for a date of
termination not less than ten (10) nor more than sixty (60) days after the date such
Notice of Termination for Good Reason is given, provided that in the case of the
events set forth in Sections 5(d)(i)(A) or (B), the date may be five (5) business
days after the giving of such notice. The Company, at its sole discretion, may
waive this requirement.





     (e) Termination by the Company without Cause. The Company may terminate Executive’s
employment hereunder without Cause at any time upon written notice to Executive.



     (f) Effect of Termination. Upon any termination of employment for any reason, Executive shall
immediately resign from all Board memberships and other positions with the Company or any of its
subsidiaries held by him at such time.



     6. Compensation Following Termination of Employment.



     In the event that Executive’s employment hereunder is terminated in a manner as set forth in
Section 5 above, Executive shall be entitled to the compensation and benefits provided under this
Section 6, in each case subject to potential reduction as may be required by Section 23, as
applicable to the form of 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, any
vacation accrued to the date of termination, any earned but unpaid bonuses for any
prior calendar year, and, to the extent not otherwise paid, a pro-rata bonus or
incentive compensation payment for the current calendar year to the extent payments are
awarded to senior executives of the Company and paid at the same time as senior
executives are paid.
	 
	 	(ii)	 	Any benefits to which Executive may be entitled pursuant to the plans, policies
and arrangements (including those referred to in Section 4(c) hereof), as determined
and paid in accordance with the terms of such plans, policies and arrangements.





     (b) Termination by Reason of Total Disability. In the event that Executive’s employment is
terminated by the Company by reason of Executive’s Total Disability (as determined in accordance
with Section 5(b)), the Company shall pay the following amounts to



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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, and any earned but unpaid
bonuses for any prior calendar year. Executive shall also be eligible for a pro-rata
bonus or incentive compensation payment for the current calendar year to the extent
such awards are made to senior executives of the Company for the year in which
Executive is terminated, and to the extent not otherwise paid to the Executive.
	 
	 	(ii)	 	Any benefits to which Executive may be entitled pursuant to the plans, policies
and arrangements (including those referred to in Section 4(c) hereof) shall be
determined and paid in accordance with the terms of such plans, policies and
arrangements.





     (c) Termination for Cause. In the event that Executive’s employment is terminated by the
Company for Cause, 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, and any earned but unpaid
bonuses for any prior calendar year.
	 
	 	(ii)	 	Any benefits to which Executive may be entitled pursuant to the plans, policies
and arrangements (including those referred to in Section 4(c) hereof up to the date of
termination) 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 voluntarily terminates
employment other than for Good Reason, 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, and any earned but unpaid
bonuses for any prior calendar year.
	 
	 	(ii)	 	Any benefits to which Executive may be entitled pursuant to the plans, policies
and arrangements (including those referred to in Section 4(c) hereof up to the date of
termination) shall be determined and paid in accordance with the terms of such plans,
policies and arrangements.





     (e) Termination by the Company Without Cause Outside a Change in Control Period; Termination
by Executive for Good Reason Outside a Change in Control Period. In the event that Executive’s
employment is terminated by the Company outside a Change in Control Period (as defined in Section
7) for reasons other than death, Total Disability or Cause,



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or Executive terminates his employment for Good Reason outside of a Change in Control Period,
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, and any earned but unpaid
bonuses for any prior calendar year.
	 
	 	(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)	 	Subject to Executive’s execution of the Release (as defined in Section 7), an
amount equal to two times the sum of Executive’s Base Salary plus his Target Annual
Bonus (in each case, as then in effect), of which one-half shall be paid in a lump sum
within ten (10) days after such termination and one-half shall be paid during the two
(2) year period beginning on the date of Executive’s termination and shall be paid at
the same time and in the same manner as Base Salary would have been paid if Executive
had remained in active employment until the end of such period.
	 
	 	(iv)	 	Subject to Executive’s execution of the Release (as defined in Section 7), the
Company at its expense will continue for Executive and Executive’s spouse and
dependents, all health benefit plans, programs or arrangements, whether group or
individual, disability, and other benefit plans, 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) two years after the date of
termination; (B) Executive’s death (provided that benefits provided to Executive’s
spouse and dependents shall not terminate upon Executive’s death); or (C) with respect
to any particular plan, program or arrangement, the date Executive becomes eligible to
participate in a comparable benefit provided by a subsequent employer. In the event
that Executive’s continued participation in any such Company plan, program, or
arrangement is prohibited, the Company will arrange to provide Executive with benefits
substantially similar to those which Executive would have been entitled to receive
under such plan, program, or arrangement, for such period on a basis which provides
Executive with no additional after tax cost.
	 
	 	(v)	 	Subject to Executive’s execution of the Release (as defined in Section 7),
Executive shall be eligible for a bonus or incentive compensation payment, at the same
time, on the same basis, and to the same extent payments are made to senior executives
of the Company, pro-rated for the fiscal year in which the Executive is terminated.





     (f) Suspension and Refund of Termination Benefits for Subsequently Discovered Cause.
Notwithstanding any provision of this Agreement to the contrary, if within one (1) year of
termination of employment of Executive by the Company for any reason other than for Cause,



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it is determined by Company that Executive could have been terminated for Cause then, to the
extent permitted by law:




	 	(i)	 	the Company may elect to cancel any and all payments of any benefits otherwise
due Executive, but not yet paid, under this Agreement or otherwise; and
	 
	 	(ii)	 	Executive will refund to the Company any amounts, plus interest, previously
paid by Company to Executive pursuant to Subsections 6(e)(iii), 6(e)(iv) or 6(e)(v).





     7. Resignation by Executive for Good Reason or Termination by Company Without Cause During a
Change in Control Period.



     (a) Certain Terminations During a Change in Control Period. Subject to potential reduction as
may be required by Section 23, in the event a Change in Control occurs and (x) Executive terminates
his employment for Good Reason during a Change in Control Period , or (y) the Company terminates
Executive’s employment without Cause (and for reason other than Death of Total Disability) during a
Change in Control Period, the Company shall, subject to Executive’s execution of the Release (as
defined in this Section 7), pay the following amounts to Executive:




	 	(i)	 	The payments and benefits provided for in Section 6(e), except that (A) the
amount and period with respect to which severance is calculated pursuant to Section
6(e)(iii) will be three (3) years and the amount shall be paid in a lump-sum and (B)
the benefit continuation period in Section 6(e)(iv) shall be for three (3) years.
	 
	 	(ii)	 	Executive shall also receive a bonus or incentive compensation payment for the
calendar year of the termination, payable at 100% of the maximum bonus available to
Executive, pro-rated as of the effective date of the termination. Such bonus payment
shall be payable within five (5) days after the effective date of Executive’s
termination. 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 termination 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 resignation or
termination.





     (b) Certain Definitions.




	 	(i)	 	For purposes of this Agreement, “Change in Control” means the first to occur on
or after the date on which this Agreement is first signed, the occurrence of any of the
following events:





	 	 	 	(A)	 	
any Person is or becomes the Beneficial Owner, directly or indirectly, of
securities of the Company representing twenty-five percent (25%) or more of the
combined voting power of the Company’s then outstanding voting securities;




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	 	 		(B) the following individuals cease for any reason to constitute a majority of the
number of directors then serving: individuals who, on the Commencement Date,
constitute the Board and any new director (other than a director whose initial
assumption of office is in connection with an actual or threatened election contest,
including but not limited to a consent solicitation, relating or the election of
directors of the Company) whose appointment or election by the Board or nomination
for election by the Company’s stockholders was approved or recommended by a vote of
at least two-thirds (2/3rds) of the directors then still in office who either were
directors on the Commencement Date or whose appointment, election or nomination for
election was previously so approved or recommended (the “Incumbent Board”);
	 
	 	 		(C) there is a consummated merger or consolidation of the Company with any other
corporation, other than (1) a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving or parent entity) more than fifty percent (50%) of the
combined voting power of the voting securities of the Company or such surviving or
parent entity outstanding immediately after such merger or consolidation or (2) a
merger or consolidation effected to implement a recapitalization of the Company (or
similar transaction) in which no Person, directly or indirectly, acquired
twenty-five percent (25%) or more of the combined voting power of the Company’s then
outstanding securities; or
	 
	 	 	 	(D) the stockholders of the Company approve a plan of complete liquidation of the
Company or there is consummated an agreement for the sale or disposition by the
Company of all or substantially all of the Company’s assets (or any transaction
having a similar effect), other than a sale or disposition by the Company of all or
substantially all of the Company’s assets to an entity, at least fifty percent (50%)
of the combined voting power of the voting securities of which are owned by
stockholders of the Company in substantially the same proportions as their ownership
of the Company immediately prior to such sale.




	 	(ii)	 	For purposes of this Section 7, “Beneficial Owner” shall have the meaning set
forth in Rule 13d-3 under the Exchange Act;
	 
	 	(iii)	 	For purposes of this Agreement, “Change in Control Period” means the period
commencing on the date occurring six months immediately prior to the date on which a
Change in Control occurs and ending on the second anniversary of the date on which a
Change in Control occurs.
	 
	 	(iv)	 	For purposes of this Agreement, “Exchange Act’ means the Securities and
Exchange Act of 1934, as amended from time to time;
	 
	 	(v)	 	For purposes of this Section 7, “Person” shall have the meaning set forth in
Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d)
thereof, except that such term shall not include (1) the Company, (2) a




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	 	 	 	trustee or other fiduciary holding securities under an employee benefit plan of the
Company, (3) an employee benefit plan of the Company, (4) an underwriter temporarily
holding securities pursuant to an offering of such securities or (5) a corporation
owned, directly or indirectly, by the stockholders of the Company in substantially
the same proportions as their ownership of shares of Common Stock of the Company.
	 
	 	(vi)	 	For purposes of this Agreement, “Release” means that specific document which
the Company shall present to Executive for consideration and execution after any
termination of employment pursuant to Section 5(e) and Section 6(e), wherein if he
agrees to such, he will irrevocably and unconditionally release and forever discharge
the Company, it subsidiaries, affiliates and related parties from any and all causes of
action which Executive at that time had or may have had against the Company (excluding
any claim for indemnity under this Agreement, any claim under state workers’
compensation or unemployment laws, or any claim under COBRA).





     8. No Other Benefits or Compensation. Except as may be provided under this Agreement, or
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, 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.



     9. No Mitigation; No Set-Off. In the event of any termination of employment hereunder,
Executive shall be under no obligation to seek other employment, and there shall be no offset
against any amounts due Executive under this Agreement on account of any remuneration attributable
to any subsequent employment that Executive may obtain. The amounts payable hereunder shall not be
subject to setoff, counterclaim, recoupment, defense or other right which the Company may have
against the Executive or others, except upon obtaining by the Company of a final non-appealable
judgment against Executive.



     10. Covenants



     (a) Company Property. All written materials, records, data, and other documents prepared or
possessed by Executive during Executive’s employment with the Company are the Company’s property.
All information, ideas, concepts, improvements, discoveries, and inventions that are conceived,
made, developed, or acquired by Executive individually or in conjunction with others during
Executive’s employment (whether during business hours and whether on the Company’s premises or
otherwise) which relate to the Company’s business, products, or services are the Company’s sole and
exclusive property. All memoranda, notes, records, files, correspondence, drawings, manuals,
models, specifications, computer programs, maps, and all other documents, data, or materials of any
type embodying such information, ideas, concepts, improvements, discoveries, and inventions are the
Company’s property. At the termination of Executive’s employment with the Company for any reason,
Executive shall return all of the Company’s documents, data, or other Company property to the
Company.



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     (b) Confidential Information; Non-Disclosure. Executive acknowledges that the business of the
Company is highly competitive and that the Company has provided and will continue to provide
Executive with access to “Confidential Information” relating to the business of the Company and its
affiliates.



     For purposes of this Agreement, “Confidential Information” means and includes the Company’s
confidential and/or proprietary information and/or trade secrets that have been developed or used
and/or will be developed and that cannot be obtained readily by third parties from outside sources.
Confidential Information includes, by way of example and without limitation, the following
information regarding customers, employees, contractors, and the industry not generally known to
the public; strategies, methods, books, records, and documents; technical information concerning
products, equipment, services, and processes; procurement procedures and pricing techniques; the
names of and other information concerning customers, investors, and business affiliates (such as
contact name, service provided, pricing for that customer, type and amount of services used,
credit and financial data, and/or other information relating to the Company’s relationship with
that customer); pricing strategies and price curves; positions, plans, and strategies for expansion
or acquisitions; budgets; customer lists; research; weather data; financial and sales data; trading
methodologies and terms; evaluations, opinions, and interpretations of information and data;
marketing and merchandising techniques; prospective customers’ names and marks; grids and maps;
electronic databases; models; specifications; computer programs; internal business records;
contracts benefiting or obligating the Company; bids or proposals submitted to any third party;
technologies and methods; training methods and training processes; organizational structure;
personnel information, including salaries of personnel; payment amounts or rates paid to
consultants or other service providers; and other such confidential or proprietary information.
Information need not qualify as a trade secret to be protected as Confidential Information under
this Agreement, and the authorized and controlled disclosure of Confidential Information to
authorized parties by Company in the pursuit of its business will not cause the information to lose
its protected status under this Agreement. Executive acknowledges that this Confidential
Information constitutes a valuable, special, and unique asset used by the Company or its affiliates
in their businesses to obtain a competitive advantage over their competitors. Executive further
acknowledges that protection of such Confidential Information against unauthorized disclosure and
use is of critical importance to the Company and its affiliates in maintaining their competitive
position.



     Executive has and will continue to have access to, or knowledge of, Confidential Information
of third parties, such as actual and potential customers, suppliers, partners, joint venturers,
investors, financing sources, and the like, of the Company and its affiliates.



     The Company also agrees to provide Executive with one or more of the following: access to
Confidential Information; specialized training regarding the Company’s methodologies and business
strategies, and/or support in the development of goodwill such as introductions, information and
reimbursement of customer development expenses consistent with Company policy. The foregoing is
not contingent on continued employment, but is contingent upon Executive’s use of the Confidential
Information access, specialized training, and goodwill support provided by Company for the
exclusive benefit of the Company and upon Executive’s full compliance with the restrictions on
Executive’s conduct provided for in this Agreement.



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     In addition to the requirements set forth in Section 5(c)(i), Executive agrees that Executive
will not after Executive’s employment with the Company, make any unauthorized disclosure of any
then Confidential Information or specialized training of the Company or its affiliates, or make any
use thereof, except in the carrying out of his employment responsibilities hereunder. Executive
also agrees to preserve and protect the confidentiality of third party Confidential Information to
the same extent, and on the same basis, as the Company’s Confidential Information.



     (c) Unfair Competition Restrictions. The Company agrees to and shall provide Executive with
immediate access to Confidential Information. Ancillary to the rights provided to Executive
following employment termination, the Company’s provision of Confidential Information, specialized
training, and/or goodwill support to Executive, and Executive’s agreements, regarding the use of
same, and in order to protect the value of the above-referenced stock options, any restricted
stock, training, goodwill support and/or the Confidential Information described above, the Company
and Executive agree to the following provisions against unfair competition. Executive agrees that
for a period of two (2) years following the termination of employment for any reason (“Restricted
Term”), Executive will not, directly or indirectly, for Executive or for others, anywhere in the
United States (including all parishes in Louisiana, and Puerto Rico) (the “Restricted Area”) do the
following, unless expressly authorized to do so in writing by the Chief Executive Officer of the
Company:




Engage in, or assist any person, entity, or business engaged in, the
selling or providing of products or services that would displace the
products or services that (i) the Company is currently in the
business of providing and was in the business of providing, or was
planning to be in the business of providing, at the time Executive
was employed with the Company, and (ii) that Executive had
involvement in or received Confidential Information about in the
course of employment; the foregoing is expressly understood to
include, without limitation, the business of the collection,
transfer, recycling and resource recovery, or disposal of solid
waste, hazardous or other waste, including the operation of
waste-to-energy facilities.



     It is further agreed that during the Restricted Term, Executive cannot engage in any of the
enumerated prohibited activities in the Restricted Area by means of telephone, telecommunications,
satellite communications, correspondence, or other contact from outside the Restricted Area.
Executive further understands that the foregoing restrictions may limit his ability to engage in
certain businesses during the Restricted Term, but acknowledges that these restrictions are
necessary to protect the Confidential Information the Company has provided to Executive.



     A failure to comply with the foregoing restrictions will create a presumption that Executive
is engaging in unfair competition. Executive agrees that this Section defining unfair competition
with the Company does not prevent Executive from using and offering the skills that



12









 







Executive possessed prior to receiving access to Confidential Information, confidential
training, and knowledge from the Company. This Agreement creates an advance approval process, and
nothing herein is intended, or will be construed as, a general restriction against the pursuit of
lawful employment in violation of any controlling state or federal laws. Executive shall be
permitted to engage in activities that would otherwise be prohibited by this covenant if such
activities are determined in the sole discretion of the Chief Executive Officer of the Company to
be no material threat to the legitimate business interests of the Company.



     (d) Non-Solicitation of Customers. For a period of two (2) years following the termination of
employment for any reason, Executive will not call on, service, or solicit competing business from
customers of the Company or its affiliates whom Executive, within the previous twelve (12) months,
(i) had or made contact with, or (ii) had access to information and files about, or induce or
encourage any such customer or other source of ongoing business to stop doing business with
Company.



     (e) Non-Solicitation of Employees. During Executive’s employment, and for a period of two (2)
years following the termination of employment for any reason, Executive will not, either directly
or indirectly, call on, solicit, encourage, or induce any other employee or officer of the Company
or its affiliates whom Executive had contact with, knowledge of, or association within the course
of employment with the Company to terminate his employment, and will not assist any other person or
entity in such a solicitation.



     (f) 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.



     11. 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 10 hereof during Executive’s
employment by the Company, shall be grounds for immediate dismissal of Executive for Cause pursuant
to Section 5(c)(i), 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 10 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 or anticipatory
breach of the covenants set forth in this section by Executive, Executive and the Company agree
that the Company shall be entitled to seek the following particular forms of relief, in addition to
remedies otherwise available to it at law or equity: (A) injunctions, both preliminary and
permanent, enjoining or restraining such breach or anticipatory breach and Executive hereby
consents to the issuance thereof forthwith and without bond by any court of competent jurisdiction;
and (B) recovery of all reasonable sums as determined by a court of



13









 







competent jurisdiction 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 10 hereof constitute a
series of separate but ancillary 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 10 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
10 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 10.



     12. Indemnification.



     The Company shall indemnify and hold harmless Executive to the fullest extent permitted by
Delaware law for any action or inaction of Executive while serving as an officer and director of
the Company or, at the Company’s request, as an officer or director of any other entity or as a
fiduciary of any benefit plan. This provision includes the obligation and undertaking of the
Executive to reimburse the Company for any fees advanced by the Company on behalf of the Executive
should it later be determined that Executive was not entitled to have such fees advanced by the
Company under Delaware law. The Company shall cover the Executive under directors and officers
liability insurance both during and, while potential liability exists, after the Employment Period
in the same amount and to the same extent as the Company covers its other officers and directors.



     13. Arbitration.



     Except with respect to enforcement of the covenants contained in Section 11 herein, the
parties agree that any dispute relating to this Agreement, or to the breach of this Agreement,
arising between Executive and the Company shall be settled by arbitration in accordance with the
Federal Arbitration Act and the commercial arbitration rules of the American Arbitration
Association (“AAA”), or any other mutually agreed upon arbitration service. The arbitration
proceeding, including the rendering of an award, shall take place in Houston, Texas, and shall be
administered by the AAA (or any other mutually agreed upon arbitration service). The arbitrator
shall be jointly selected by the Company and Executive within thirty (30) days of the notice of
dispute, or if the parties cannot agree, in accordance with the commercial arbitration rules of the
AAA (or any other mutually agreed upon arbitration service). All fees and expenses associated with
the arbitration shall be borne equally by Executive and the Company during the arbitration, pending
final decision by the arbitrator as to who should bear fees, unless otherwise ordered by



14









 







the arbitrator. The arbitrator shall not be authorized to create a cause of action or remedy
not recognized by applicable state or federal law. The award of the arbitrator shall be final and
binding upon the parties without appeal or review, except as permitted by the arbitration laws of
the State of Texas. The award shall be enforceable through a court of law upon motion of either
party.



     14. 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 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, provided that Executive shall repay any such amounts paid or advanced if Executive
is not the prevailing party with respect to at least one material claim or issue in such dispute or
litigation. The provisions of this Section 11, without implication as to any other section hereof,
shall survive the expiration or termination of this Agreement and of Executive’s employment
hereunder.



     15. Requirement of Timely Payments.



     If any amounts which are required, or determined to be paid or payable, or reimbursed or
reimbursable, to Executive under this Agreement (or any other plan, agreement, policy or
arrangement with the Company) are not so paid promptly at the times provided herein or therein,
such amounts shall accrue interest, compounded daily, at an 8% annual percentage rate, from the
date such amounts were required or determined to have been paid or payable, reimbursed or
reimbursable to Executive, until such amounts and any interest accrued thereon are finally and
fully paid, provided, however, that in no event shall the amount of interest contracted for,
charged or received hereunder, exceed the maximum non-usurious amount of interest allowed by
applicable law.



     16. Withholding of Taxes.



     The Company may withhold from any compensation and benefits payable under this Agreement all
applicable federal, state, local, or other taxes.



     17. 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



15









 







shall be no greater than the right of an unsecured creditor of the Company.



     18. 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 (but any payments due hereunder which
would be payable at a time after Executive’s death shall be paid to Executive’s designated
beneficiary or, if none, his estate) 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 in a writing delivered to Executive in a form reasonably acceptable to
Executive (the provisions of this sentence also being applicable to any successive such
transaction).



     19. 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.



     20. Governing Law.



     This Agreement shall be governed by and construed in accordance with the laws of the State of
Texas applicable to agreements made and to be performed in that State, without regard to its
conflict of laws provisions.



     21. 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.






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     22. 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 11 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.



     23. Potential Limitation on Severance Benefits.



     (a) Maximum Severance Amount. Notwithstanding any provision in this Agreement to the
contrary, in the event of a qualifying termination (or resignation) under Section 6(e) or Section 7
of this Agreement it is determined by the Company that the present value of payments or
distributions by the Company, its subsidiaries or affiliated entities to or for the benefit of the
Executive (whether paid or provided pursuant to the terms of this Agreement or otherwise)
(“Severance Benefits”) would exceed 2.99 times the sum of the Executive’s then current base salary
and target bonus (the “Maximum Severance Amount”), then the aggregate present value of the
Severance Benefits provided to the Executive shall be reduced by the Company to the Reduced Amount.
The “Reduced Amount” shall be an amount, expressed in present value, that maximizes the aggregate
present value of the Severance Benefits without exceeding the Maximum Severance Amount.



     (b) Calculation of Maximum Severance Amount. For purposes of determining the Maximum
Severance Amount under this Section 23, benefits included in the calculation of the Maximum
Severance Amount will include: (i) cash amounts payable by the Company in the event of termination
of Executive’s employment; and (ii) the present value of benefits or perquisites provided for
periods after termination of employment (but excluding benefits or perquisites provided to
employees generally). The calculation of the Maximum Severance Amount will not include the
following benefits: (i) payments of salary, bonus or performance award amounts that had accrued at
the time of termination; (ii) payments based on accrued qualified and non-qualified deferred
compensation plans, including retirement and savings benefits; (iii) any benefits or perquisites
provided under plans or programs applicable to employees generally; (iv) amounts paid as part of
any agreement intended to “make-whole” any



17









 







forfeiture of benefits from a prior employer; (v) amounts paid for services following
termination of employment for a reasonable consulting agreement for a period not to exceed one
year; (vi) amounts paid for post-termination covenants (such as a covenant not to compete); (vii)
the value of accelerated vesting or payment of any outstanding equity-based award; and (viii) any
payment that the Board or any committee thereof determines in good faith to be a reasonable
settlement of any claim made against the Company.



     (c) Possible Further Reduction. Following application of Section 23(b), in the event that
the payment of the remaining Severance Benefits to Executive (including any payment or benefit
received in connection with a Change in Control or the termination of Executive’s employment),
would be subject (in whole or part), to any excise tax imposed under section 4999 of the Code (the
“Excise Tax”), then the cash portion of the Severance Benefits shall first be further reduced, and
the non-cash Severance Benefits shall thereafter be further reduced, to the extent necessary so
that no portion of the Severance Benefits is subject to the Excise Tax, but only if (i) the net
amount of the Severance Benefits to be received by Executive, as so additionally reduced by this
Section 23(c) (and after subtracting the net amount of federal, state and local income taxes on
such additionally reduced Severance Benefits and after taking into account the phase out of
itemized deductions and personal exemptions attributable to such additionally reduced Severance
Benefits) is greater than or equal to (ii) the net amount of the Severance Benefits to be received
by Executive without such additional reduction (but after subtracting the net amount of federal,
state and local income taxes on such Severance Benefits and the amount of Excise Tax to which
Executive would be subject in respect of such unreduced Severance Benefits and after taking into
account the phase out of itemized deductions and personal exemptions attributable to such unreduced
Severance Benefits ); provided, however, that Executive may elect to have the non-cash portion of
the Severance Benefits reduced (or eliminated) prior to any reduction of the cash portion of the
Severance Benefits.



     (d) Calculation of Excise Tax. For purposes of determining whether and the extent to which
portions of the Severance Benefits will be subject to the Excise Tax, (i) no portion of the
Severance Benefits the receipt or enjoyment of which Executive shall have waived at such time and
in such manner as not to constitute a “payment” within the meaning of section 280G(b) of the Code
shall be taken into account, (ii) no portion of the Severance Benefits shall be taken into account
which, in the opinion of tax counsel (“Tax Counsel”) who is reasonably acceptable to Executive and
selected by the accounting firm (the “Auditor”) which was, immediately prior to the Change in
Control, the Company’s independent auditor, does not constitute a “parachute payment” within the
meaning of section 280G(b)(2) of the Code (including by reason of section 280G(b)(4)(A) of the
Code) and, in calculating the Excise Tax, no portion of such Severance Benefits shall be taken into
account which, in the opinion of Tax Counsel, constitutes reasonable compensation for services
actually rendered, within the meaning of section 280G(b)(4)(B) of the Code, in excess of the “base
amount” (as defined in section 280G(b)(3) of the Code) allocable to such reasonable compensation,
and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the
Severance Benefits shall be determined by the Auditor in accordance with the principles of sections
280G(d)(3) and (4) of the Code.



18









 





     (e) Determination of Present Value. For purposes of this Section 23, the present value of
Severance Benefits shall be determined in accordance with section 280G(d)(4) of the Code.



     24. Code Section 409A.


It is the intention of the Company and Executive that his Agreement not result in an unfavorable
tax consequences to Executive under section 409A of the Code. Accordingly, Executive consents to
any amendment of this Agreement as the Company may reasonably make in furtherance of such
intention, and the Company shall promptly provide, or make available to, Executive a copy of such
amendment.




          IN WITNESS WHEREOF, this Agreement is EXECUTED as of the date first set forth above and
effective as set forth therein.




	 	 	 	 	 	 	 
	     /s/ James Schultz	 	WASTE MANAGEMENT, INC.	 	 
	 	 	 	 	 	 	 
	James Schultz	 	(The “Company”)	 	 
	(“Executive”)
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By: 
	      /s/ Jimmy LaValley	 	 
	 	 	 	 	   	 	 
	Home Address

	 	 	 	Jimmy LaValley	 	 
	 

	 	 	 	Senior Vice President & Chief

People Officer	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 	 	 
	City, State, ZIP Code
	 	 	 	 	 	 







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