EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of October 14, 1997 (this "Agreement"),
by and between JTM Industries, Inc. (the "Company") and Xxxx X. ("Chip") Everest
(the "Executive").
WHEREAS, simultaneous with and effective upon the acquisition of the
Company by Industrial Quality Services, Inc., a Delaware corporation from
Xxxxxxx, Inc., the Company desires to employ the Executive as Chief Financial
Officer of the Company; and
WHEREAS, the Executive desires to be retained in such capacity on the
terms and conditions set forth herein, effective upon the consummation of such
acquisition (the "Commencement Date"), it being understood and acknowledged that
if the consummation of the acquisition shall not occur, this Agreement shall
have no force or effect.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements made herein, the Company and the Executive agree as follows:
1. No Conflict. The Executive represents to the Company that the
execution, delivery and performance by the Executive of this Agreement do not
and shall not conflict with or result in a violation or breach of, or constitute
(with or without notice or lapse of time or both) a default under any contract,
agreement or understanding, whether oral or written, to which the Executive is a
party or of which the Executive is or should be aware.
2. Employment; Duties. The Company shall employ the Executive as Chief
Financial Officer for the "Employment Period" as defined in Section 3. The
Executive, in his capacity as Chief financial Officer, shall have such duties,
responsibilities and authority normally incident to such office. The precise
duties, responsibilities and authority of the Executive may be expanded, limited
or modified, at any time and from time to time, at the discretion of the Board
of Directors of the Company (the "Board") or its Chief Executive Officer. During
the Employment Period, the Executive shall devote all necessary working time,
attention, knowledge and experience and give his diligent effort, skill and
abilities, to promote the business and interests of the Company. Subject to
Section 8, the Executive may serve as an officer or director of, make
investments in, or otherwise participate in, other entities, provided that such
service is disclosed in advance to the Board.
3. Employment Period. This Agreement shall have a term of three years,
commencing as of the commencement Date and ending on the third anniversary of
the commencement Date (the "Initial Period"), unless sooner terminated in
accordance with the provisions of Section 9. On the expiration of the Initial
Period and on each yearly anniversary thereof, this Agreement shall
automatically renew for an additional one-year period, unless sooner terminated
in accordance with the provisions of Section 9, unless the Company or the
Executive notifies the other in writing of its intention not to renew this
Agreement not less than sixty (60) days prior to such expiration date or
anniversary, as the case may be. The term of this Agreement, as in effect from
time to time, is referred to herein as the "Employment Period."
4. Compensation and Benefits.
(a) Base Compensation. The Executive shall be paid an
aggregate base salary (the "Base Salary") at the rate of $125,000 per annum,
less statutory deductions and withholdings. The Base Salary shall be payable in
a manner consistent with the normal payroll practices of the Company as in
effect from time to time. The Base Salary shall be reviewed annually by the
Compensation Committee of the Board (the "Committee").
(b) Annual Bonus. In addition to the Base Salary, the
Executive may be entitled to receive a discretionary annual bonus for each year
during the Employment Period based upon such factors as shall be established by
the Committee, at the sole discretion of the Committee.
(c) Employee Benefits. The Executive shall be entitled to
participate in each and every employee benefit and group insurance plan and
program provided by the Company for its officers and employees generally, in
accordance with the terms of the applicable plan documents as they may be
amended from time to time, substantially consistent with the employee benefits
being provided to the officers and/or employees of the Company as of the date
immediately preceding the effectiveness of this Employment Agreement.
(d) Business Expense Reimbursement. The Company shall
reimburse the Executive for all reasonable and necessary business and travel
expenses that the Executive incurs in connection with the Executive's
performance of services for the Company hereunder, in accordance with the
reimbursement policies established by the Company from time to time (which, the
parties hereto acknowledge, shall be consistent with the policies of the Company
as they relate to business expense reimbursement as of the date immediately
preceding the effectiveness of this Employment Agreement), and shall reimburse
the Executive for the reasonable expenses associated with the maintenance of an
office in Utah, provided that such reimbursement shall be limited to $3,000 per
month.
5. Confidentiality. The Executive recognizes that it is in the
legitimate business interest of the Company to restrict his disclosure or use of
Trade Secrets and Confidential Information relating to the Company and its
direct or indirect subsidiaries, parents or affiliates for any purpose other
than in connection with his performance of his duties to the Company, and to
limit any potential appropriation of such Trade Secrets and Confidential
Information by the Executive. The Executive therefore agrees that both during
and at all times after the Employment Period, he shall maintain as confidential
all Trade Secrets and Confidential Information relating to the Company and its
direct or indirect subsidiaries, parents or affiliates heretofore or in the
future obtained by the Executive. The terms "Trade Secrets" and/or "Confidential
Information" means matters of a confidential technical or business nature that
have been maintained as confidential or the disclosure of which could likely
have an adverse effect upon the interests of the Company or its direct or
indirect subsidiaries, parents or affiliates.
6. Return of Documents and Property. Upon the termination of the
Executive's employment with the Company, or at any time upon the request of the
Company, the Executive (or his heirs or personal representatives) shall deliver
to the Company (a) all documents and materials (including, without limitation,
computer files) containing Trade Secrets or other confidential Information
relating to the business and affairs of the Company and its direct and indirect
subsidiaries, parents or affiliates, and (b) all documents, materials and other
property (including, without limitation, computer files) belonging to the
Company or its direct or indirect subsidiaries, parents or affiliates, which in
either case are in the possession or under the control of the Executive (or his
heirs or personal representatives).
7. Discoveries and Works. All Discoveries and Works made or conceived
by the Executive during his employment by the Company, whether during the
Employment Period or at any time period thereto, whether or not on the property
or premises of the Company, jointly or with others, which relate to the
activities of the Executive with the Company or its direct or indirect
subsidiaries, parents or affiliates shall be owned by the Company or its direct
or indirect subsidiaries, parents or affiliates. The term "Discoveries and
Works" includes, by way of example but without limitation, Trade Secrets and
other Confidential Information, patents and patent applications, trademarks and
trademark registrations and applications, service marks and service xxxx
registrations and applications, trade names, copyrights and copyright
registrations and applications. The Executive shall (a) promptly notify, make
full disclosure to, and execute and delivery any documents requested by, the
Company, as the case may be, to evidence or better assure title to Discoveries
and Works in the Company, as the case may be, to evidence or better assure title
to Discoveries and Works in the Company, as the case may be, to evidence or
better assure title to Discoveries and Works in the Company or its direct or
indirect subsidiaries, parents or affiliates, as so requested, (b) renounce any
and all claims, including but not limited to claims of ownership and royalty,
with respect to all Discoveries and Works and all other property owned or
licensed by the Company or its direct or indirect subsidiaries, parents or
affiliates, (c) assist the Company or its direct or indirect subsidiaries,
parents or affiliates in obtaining or maintaining for itself at its own expense
United States and foreign patents, copyrights, trade secret protection or other
protection of any and all Discoveries and Works, and (d) promptly execute,
whether during his employment with the Company or thereafter, all applications
or other endorsements necessary or appropriate to maintain patents and other
rights for the Company or its direct or indirect subsidiaries, parents or
affiliates and to protect the title of the Company or its direct or indirect
subsidiaries, parents or affiliates thereto, including but not limited to
assignments of such patents and other rights. The Executive acknowledges that
all Discoveries and Works shall be deemed "works made for hire" under the
Copyright Act of 1976, as amended, 17 U.S.C. ss. 101.
8. Noncompetition and Nonsolicitation.
(a) Restrictive Covenant. The Executive agrees that he shall,
during the Restricted Period (as defined below), refrain from, either alone or
in conjunction with any other Person, or directly or indirectly through his
present or future affiliates or Associates (as defined below):
(i) (except pursuant to his duties performed for the
Company during the Employment Period) directly or indirectly, owning, managing,
operating, joining or having a financial interest in, controlling or
participating in the ownership, management, operation or control of, or being
employed as an employee, agent or the Executive, or in any other individual or
representative capacity whatsoever, or using or permitting his name to be used
in connection with, or lending assistance (financial or otherwise) to or being
otherwise connected in any manner with any business or enterprise engaged in the
Restricted Business (as defined below) within any portion of the United States
(whether or not such business is physically located within the United States);
provided, however, that nothing contained herein shall be construed as
preventing the Executive from engaging in the ownership, purchase and/or sale of
landfills; and
(ii) soliciting, inducing, or attempting to influence
any individual who the Executive, after due inquiry, knows is an employee of the
Company or any of its subsidiaries, parents or affiliates to terminate his or
her employment relationship with the Company or such subsidiary or affiliate, or
to become employed by the Executive is employed, or interfering in any other way
with the employment, or other relationship, of the Company or such subsidiary,
parent or affiliate and any employee thereof; provided, however, that this
clause (ii) shall not apply as it may relate to R. Xxxxxxx Xxxxxxx.
(b) Definitions. As used herein:
(i) "Associate" means with respect to any person, any
corporation or other business organization of which such person is an officer,
employee or partner or is the beneficial owner, directly or indirectly, of ten
percent (10%) or more of any class of equity securities, any trust or estate in
which such person has a substantial beneficial interest or as to which such
person serves as a trustee or in a similar capacity and any relative or spouse
of such person, or any relative of such spouse;
(ii) "Cause" shall mean (i) the willful and continued
failure of the Executive to follow the lawful directions of the Board, (ii) any
act of fraud or dishonesty, misappropriation or embezzlement, or willful
misconduct in connection with the performance of the Executive's duties
hereunder, (iii) a material breach by the Executive of any material provision
hereof or any of any material contractual or material legal duty to the Company
(including, but not limited to, the unauthorized disclosure of Trade Secrets or
other Confidential Information), after written notice thereof from the Board and
a 30-day opportunity to cure in the event that such breach is curable, (iv) the
conviction of the Executive of a felony or other crime or offense involving
moral turpitude (including pleading guilty or no contest to such a crime or
offense or a lesser charge which results from plea bargaining), whether or not
committed in connection with the business of the Company, (v) the Executive's
alcohol or substance abuse or (vi) a material breach by the Executive of the
provisions of any stockholders agreement or other agreement relating to the
Executive's acquisition of any equity interest in the Company to which the
Executive may become a party on or after the Commencement Date after written
notice therefrom the Board and a 30-day opportunity to cure in the event that
such breach is curable.
(iii) "Good Reason" shall mean a material breach by
the Company of any material provision hereof (after written notice thereof from
the Executive and a 30-day opportunity to cure in the event that such breach is
curable); a transfer of the Executive's customary place of employment to a
location more than 40 miles from Salt Lake City, Utah; or a material change in
the nature of the Executive's duties, title or responsibility without the
consent of the Executive.
(iv) "Restricted Business" means the provision of
coal by-product ("CCB") management services, such as collection, removal,
disposal and marketing of fly-ash and other CCBs.
(v) "Restricted Period" means the Employment Period,
and the period thereafter equal to (i) three years in the case of a termination
of the Employment Period by the Company with Cause or by the Executive without
Good Reason, or (ii) two years in the case of a termination of the Employment
Period for any other reason (including by reason of expiration of the term of
the Agreement).
(c) Reasonableness of Restrictions. The Executive acknowledges
and agrees that the restrictions set forth in this Section 8, and specifically,
the period of time designated as the Restricted Period and geographical area
specified hereunder, are reasonable in view of the nature of the business in
which the Company is engaged, and the Executive's particular knowledge of the
Company's and its subsidiaries, parents and affiliates' respective businesses,
and the Executive hereby agrees not to challenge in any way, or other otherwise
raise a defense to, the enforceability of any of the restrictions set forth in
this Section 8 during the Restricted Period in any manner whatsoever, including
but not limited to challenging the reasonableness of the restrictions set forth
herein.
(d) Enforceability of Restrictive Covenants. It is the
understanding of the Executive and the Company that the provisions of this
Section 8 be enforced to the fullest extent permissible under the laws and
policies of each jurisdiction in which enforcement may be sought, and that the
unenforceability (or the modification to conform to such laws or policies) of
any provisions of this Section shall not render unenforceable, or impair, the
remainder of the provisions of this Section 8, or of this Agreement.
9. Termination. The Company or the Executive may terminate this
Agreement, with or without cause, with or without prior notice. In the vent the
Company terminates this Agreement or the Executive resigns from employment, the
Executive's rights and the obligations of the Company hereunder shall cease as
of the effective date of the termination, including, without limitation, the
right to receive the Base Salary, any Bonus Award and all other compensation or
benefits provided for in this Agreement, and the Executive hereby acknowledges
and agrees that no severance or similar or other damages or payments of any kind
whatsoever shall be payable to the Executive due to, in connection with, or in
the event of, the Executive's termination or resignation from employment for any
reason.
10. Enforcement.
(a) Equitable Relief. The Executive agrees that remedies at
law for any breach of threat of breach by him of any of the provisions of
Sections 5, 6, 7, and 8 hereof will be inadequate, and that, in addition to any
other remedy to which the Company may be entitled at law or in equity, the
Company shall be entitled to a temporary or permanent injunction or injunctions
or temporary restraining order or orders to prevent breaches of the provisions
of Sections 5, 6, 7 and 8 hereof and to enforce specifically the terms and
provisions hereof, in each case without the need to post any security or bond.
Nothing herein contained shall be construed as prohibiting the Company from
pursuing, in addition, any other remedies available to the Company for such
breach or threatened breach. A waiver by the Company of any breach of any
provision hereof shall not operate or be construed as a waiver of a breach of
any other provision of this Agreement or of any subsequent breach by the
Executive.
(b) Enforceability. It is expressly understood and agreed that
although the Company and the Executive consider the restrictions contained in
Sections 5, 6, 7 and 8 hereof to be reasonable for the purpose of preserving the
goodwill, proprietary rights and going concern value of the Company, if a final
judicial determination is made by a court having jurisdiction that the time or
territory or any other restriction contained in such Sections 5, 6, 7 and 8 is
an unenforceable restriction on the Executive's activities, the provisions of
such Sections 5, 6, 7 and 8 shall not be rendered void but shall be deemed
amended to apply as to such maximum time and territory and to such other extent
as such court may judicially determine or indicate to be reasonable.
Alternatively, if the court referred to above finds that any restriction
contained in Sections 5, 6, 7 or 8 or any remedy provided herein is
unenforceable, and such restriction or remedy cannot be amended so as to make it
enforceable, such finding shall not affect the enforceability of any of the
restrictions contained therein or the availability of any other remedy. The
provisions of Sections 5, 6, 7 and 8 shall in no respect limit or otherwise
affect the Executive's obligations under other agreements with the Company.
11. Assignment. The rights and obligations of the parties under this
Agreement shall not be assignable by either the Company or the Executive,
provided that this Agreement is assignable by the Company to any affiliate of
the Company, to any successor in interest to any business of the Company, or to
a purchaser of all or substantially all of the assets of any business of the
Company.
12. Notices. Any notice required or permitted under this Agreement
shall be deemed to have been effectively made or given if in writing and
personally delivered, mailed properly addressed in a sealed envelope, postage
prepaid by certified or registered mail, delivered by a reputable overnight
delivery service or sent by facsimile. Unless otherwise changed by notice,
notice shall be properly addressed to the Executive if addressed to:
Xxxx X. ("Chip") Everest
ECDC Environmental
000 Xxxxx 000 Xxxx
Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxx & Xxxxxxx
One Utah Center
000 Xxxxx Xxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000
Fax: (000) 000-0000
Attention: J. Xxxxxx Xxxxxx, Esq.
and properly addressed to the Company if addressed to:
JTM Industries, Inc.
c/o Citicorp Venture Capital, Ltd.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Facsimile No: (000) 000-0000
with a copy to:
Xxxxxx Xxxxx & Bockius LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx, Esq.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement
as of the day and year first above written.
JTM INDUSTRIES, INC.
/s/ unreadable
-------------------------------
By:
Title:
EXECUTIVE
/s/ J. I. Everest
--------------------------------
Xxxx X. ("Chip") Everest
