EMPLOYMENT AGREEMENT
EXHIBIT
10.72
This
EMPLOYMENT AGREEMENT (this “Employment
Agreement” or this “Agreement”)
is made and entered into effective as of the 1st day of January, 2010 (the
“Effective
Date”), by and between American Ecology
Corporation, a Delaware corporation (the “Company”),
and Xxxxx Xxxx
(“Employee”). The
Company and Employee are sometimes collectively referred to herein as the “Parties,”
and individually, as a “Party.”
Whereas,
Employee is currently rendering valuable services to the Company and the Parties
desire to enter into this Agreement to continue Employee’s employment on the
terms and conditions hereinafter set forth.
Now,
Therefore, in consideration of the premises, the mutual promises,
covenants and conditions herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties hereto, intending to be legally bound hereby, agree as
follows:
1.0. Employment.
Section
1.01. Employment. The Company
hereby employs Employee, and Employee hereby accepts employment with the
Company, all upon the terms and subject to the conditions set forth in this
Employment Agreement, effective as of the Effective Date first set forth
above.
Section
1.02. Term of Employment. The term
of employment of Employee by the Company pursuant to this Employment Agreement
shall be for the period commencing on the Effective Date and ending December 31,
2010 (the “Employment
Term”), or such earlier date that Employee’s employment is terminated in
accordance with the provisions of this Employment Agreement; provided, however, that the
Employment Term shall automatically renew for additional one (1) year periods if
neither the Company nor Employee has notified the other in writing of its or his
intention not to renew this Employment Agreement on or before 60 days prior to
the expiration of the Employment Term (including any renewal(s)
thereof).
Section
1.03. Capacity and Duties. Employee is and shall be
employed in the capacity of Vice President Operations of the Company and its
subsidiaries as the senior executive with overall responsibility for the
Company’s operations, and shall have such other duties, responsibilities and
authorities as may be assigned to him from time to time by the Chief Executive
Officer of the Company (the “CEO”),
which are not materially inconsistent with Employee’s position(s) with the
Company. Except as otherwise herein provided, Employee shall devote
his entire business time, best efforts and attention to promote and advance the
business of the Company and its subsidiaries and to perform diligently and
faithfully all the duties, responsibilities and obligations of Employee to be
performed by him under this Employment Agreement.
Section
1.04. No Other Employment. During
the Term, Employee shall not be employed in any other business activity, whether
or not such activity is pursued for gain, profit or other pecuniary advantage;
provided, however, that this
restriction shall not be construed as preventing Employee from (i) participating
in charitable, civic, educational, professional, community or industry affairs;
and (ii) investing his personal assets in a business which does not compete with
the Company or its subsidiaries or with any other company or entity affiliated
with the Company, where the form or manner of such investment will not require
services on the part of Employee in the operation of the affairs of the business
in which such investment is made and in which his participation is solely that
of a passive investor or advisor, so long as the activities in clauses (i) and
(ii) above, do not materially interfere with the performance of Employee’s
duties hereunder or create a potential business conflict or the appearance
thereof.
Section
1.05. Adherence to Standards.
Employee shall comply with the written policies, standards, rules and
regulations of the Company from time to time established for all Employee
officers of the Company consistent with Employee’s position and level of
authority.
Section
1.06. Review of Performance. The CEO shall periodically
review and evaluate with Employee his performance under this Employment
Agreement.
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2.0. Compensation.
During
the Employment Term, subject to all the terms and conditions of this Employment
Agreement and as compensation for all services to be rendered by Employee
hereunder, the Company shall pay to or provide Employee with the
following:
Section
2.01. Base Salary. During the
Employment Term, the Company shall pay to Employee an annual base salary (“Base
Salary”) in an amount not less than One Hundred Seventy-Two Thousand and
No/100 Dollars ($172,000.00). Such Base Salary shall be payable in
accordance with the regular payroll practices and procedures of the
Company.
Section
2.02. Incentive Pay. Employee shall
participate in any cash incentive or bonus plans of the Company which are in
effect from time to time, including the annual cash incentive payment
opportunity granted to Employee under the Company’s Management Incentive Plan
(“MIP” and
together with any other cash incentive or bonus plans of the Company, the “Cash Incentive
Plans”), subject to the terms and conditions thereof, at a 40% of Base
Salary at a 100% of MIP target basis, which such MIP target shall be set
annually by the Board of Directors of the Company (the “Board”).
Anything to the contrary in this Agreement notwithstanding, the Company reserves
the right to modify or eliminate any or all of its Cash Incentive Plans at any
time. In the event of any consistency between the terms of this
Employment Agreement and the terms of any Cash Incentive Plan, the Cash
Incentive Plan shall govern and control.
Section
2.03. Paid Time Off and Other
Benefits. Employee shall be
entitled to five (5) weeks Paid Time Off (“PTO”), and
shall have the right, on the same basis as other members of senior management of
the Company, to participate in any and all employee benefit plans and programs
of the Company, including medical plans, insurance plans and other benefit plans
and programs as shall be, from time to time, in effect for executive employees
and senior management personnel of the Company. Such participation shall be
subject to the terms of the applicable plan documents, generally applicable
Company policies and the discretion of the Board or any administrative or other
committee provided for in, or contemplated by, each such plan or
program. Anything to the contrary in this Agreement notwithstanding,
the Company reserves the right to modify or terminate such benefit plans and
programs at any time.
Section
2.04. Other Benefits. The Company
may provide Employee with other or additional benefits not specifically
described herein. In such event, these other or additional benefits shall be
specified in writing and attached hereto as Exhibit A (Other Benefits).
Section
2.05. Expenses. The Company shall
reimburse Employee for all reasonable, ordinary and necessary expenses
including, but not limited to, automobile and other business travel and customer
and business entertainment expenses incurred by him in connection with his
employment in accordance with the Company’s expense reimbursement policy; provided, however, Employee
shall render to the Company a complete and accurate accounting of all such
expenses in accordance with the substantiation requirements of the Internal
Revenue Code of 1986, as amended (the “Code”). Employee’s
right to reimbursement hereunder may not be liquidated or exchanged for any
other benefit, and Employee shall be reimbursed for eligible expenses no later
than the close of the calendar year following the year in which Employee incurs
the applicable expense.
3.0. Equity
Ownership.
Section
3.01. Equity Ownership Requirement.
In order to more closely align Employee’s interest in the Company with that of
its stockholders, Employee and the Company agree as follows: (i) within 12
months of the Effective Date, Employee agrees to have acquired (through
purchase, grant or exercise), at his cost and expense, Company common stock in
an aggregate amount not less than $43,000, including any current ownership of
Company common stock; (ii) within 24 months of the Effective Date, Employee
agrees have acquired (through purchase, grant or exercise), at his cost and
expense, Company common stock in an aggregate amount not less than $86,000,
including any current ownership of Company common stock; (iii) within 36 months
of the Effective Date, Employee agrees to have acquired (through purchase, grant
or exercise), at his cost and expense, Company common stock in an aggregate
amount not less than $129,000, each such dollar amount to be calculated based on
the greater of cost basis or market; and (iv) Employee agrees to maintain such
total equity ownership position throughout the remainder Employment Term (the
foregoing requirements shall be collectively referred to as the “Equity Ownership
Requirement”).
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Section
3.02. Failure to Maintain Equity
Ownership. If, during the Employment Term, Employee shall fail to
maintain the Equity Ownership Requirement, Employee shall have 30 days to cure
such failure by acquiring additional shares of common stock in the Company, at
Employee’s sole cost and expense. If Employee fails to cure the breach of the
Equity Ownership Requirement within such 30-day period, the vesting of all
previously granted but unvested equity grants, as set forth in Item 1 (Annual Equity Grants) of Exhibit A hereto
(Other Benefits) shall
terminate, and Employee shall not qualify for any new equity grants
thereafter.
4.0. Termination of
Employment.
Section
4.01. Termination of Employment.
Employee’s employment and this Employment Agreement may be terminated prior to
expiration of the Employment Term as follows (with the date of termination of
Employee’s employment hereunder being referred to hereinafter as the “Termination
Date”):
(a) By either
Party by delivering 60 days’ prior written notice of non-renewal as set forth in
the Section
1.02 (Term of
Employment);
(b) Upon no less
than 30 days’ written notice from the Company to Employee at any time without Cause (as hereinafter
defined) and other than due to Employee’s death or Disability, subject to the
provisions of Section
5.02 (Termination by
the Company Without Cause or by the Employee For Good
Reason);
(c) By the
Company for Cause (as
hereinafter defined) immediately upon written notice stating the basis for such
termination;
(d) Due to the
death or Disability (as hereinafter defined) of Employee;
(e) By Employee
at any time without
Good Reason (as hereinafter defined) upon 30 days’ written notice from Employee
to the Company (or such shorter period to which the Company may
agree;
(f) By Employee
at any time with Good Reason (as hereinafter defined) upon 90 day’s written
notice from Employee to the Company of the occurrence of an event or
circumstance believed to constitute Good Reason; and
(g) Upon the
mutual agreement of the Company and Employee.
Section
4.02. Effect of Termination. In the
event of termination of Employee’s employment with the Company for any reason,
or if Employee is required by the Board, Employee agrees to resign, and shall
automatically be deemed to have resigned, from any offices Employee holds with
the Company or any of its subsidiaries effective as of the Termination Date or,
if applicable, effective as of a date selected by the Board.
5.0. Payments Upon Termination of
Employment.
Section
5.01. Termination by the Company For Cause
or by the Employee Without Good Reason. If Employee’s employment
and this Employment Agreement are terminated by the Company for Cause or by Employee
without Good Reason,
the Company shall pay Employee the Accrued Obligations (as hereinafter defined)
(other than, however, any
amounts under any Cash Incentive Plan which are forfeited pursuant to the terms
of such plan as a result of the termination), in a single, lump-sum payment
within 45 days following such termination.
Section
5.02. Termination by the Company Without
Cause or by the Employee For Good Reason. If Employee’s employment
and this Employment Agreement are terminated by the Company without Cause or if Employee
terminates his employment and this Employment Agreement for Good Reason, the Company
shall pay Employee the Accrued Obligations in a single, lump-sum payment within
45 days following such termination. In addition, Employee shall be
entitled to receive, subject, however, to the provisions of Sections 6.0 and 7.0,
the following: (i) an amount equal to one (1) year’s Base Salary (“Severance
Payment”), which shall be payable in bi-weekly installments, in
accordance with the regular payroll practices and procedures of the Company; and
(ii) continued medical, hospitalization, life insurance and disability benefits
to which Employee was entitled at the Termination Date (any of which may, in the
Company’s discretion, be structured as a reimbursement to the Employee of the
after-tax cost thereof) for a period of 12 months following the
Termination Date (or until Employee receives similar or comparable coverage from
a new employer). Employee specifically acknowledges and agrees that all such
additional payments and benefits under this Section 5.02 shall be
conditional on Employee’s strict and continued compliance with Section 10.0 (Return of Property), Section 13.0 (Confidentiality), Section 14.0 (Work Product Assignment), and
Section 15.0
(Covenant Not to
Compete).
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Section
5.03. Termination Due to
Death. If
Employee’s employment and this Employment Agreement are terminated due to
Employee’s death, the Company shall pay the estate of Employee the Accrued
Obligations in a single, lump-sum payment within 45 days following such
termination.
Section
5.04. Termination Due to
Disability. If Employee’s employment
and this Employment Agreement are terminated due to his Disability, the Company
shall pay Employee the Accrued Obligations in a single, lump-sum payment within
45 days following such termination; in addition, Employee will be eligible to
participate in the Company’s Long-Term Disability Plan, on a basis no less
favorable to Employee than other senior Employees of the Company.
Section
5.05. Retirement. If Employee’s
employment and this Employment Agreement are terminated by virtue of Employee’s
Retirement prior to the expiration of the Employment Term, the Company shall pay
Employee the Accrued Obligations (other than, however, any amounts under any
Cash Incentive Plan, which are forfeited pursuant to the terms of such plan as a
result of the termination) in a single, lump-sum payment within 45 days
following such termination.
6.0. Payment Upon Change of
Control.
Upon a
Change of Control of the Company (as hereinafter defined) during the Employment
Term, Employee shall receive a payment equal to the Severance Payment described
in Section 5.02
above, to be paid in a single lump-sum payment, within 45 days following the
date of the Change of Control. In addition, all unvested stock options and
restricted stock shall immediately vest upon a Change of Control.
7.0. Compliance With Section
409A.
Notwithstanding
anything to the contrary in this Employment Agreement, no severance pay or
benefits to be paid or provided to the Employee, if any, pursuant to this
Agreement, when considered together with any other severance payments or
separation benefits that are considered deferred compensation under
Section 409A of the Code and any final regulations and official guidance
promulgated thereunder (“Section
409A”) (together, the “Deferred
Compensation Separation Benefits”) will be paid or otherwise provided
until the Employee has a “separation from service” within the meaning of
Section 409A. In addition, if the Employee is a “specified employee” within
the meaning of Section 409A at the time of the Employee’s termination
(other than due to death), then, to the extent necessary to avoid the imposition
of penalty taxes on Employee pursuant to Section 409A, the Deferred Compensation
Separation Benefits that are payable within the first six months following the
Employee’s separation from service, will become payable on the first payroll
date that occurs on or after the date six months and one (1) day following
the date of the Employee’s separation from service. All subsequent Deferred
Compensation Separation Benefits, if any, will be payable in accordance with the
payment schedule applicable to each payment or benefit. Notwithstanding anything
herein to the contrary, if the Employee dies following the Employee’s separation
from service, but prior to the six-month anniversary of the separation from
service, then any payments delayed in accordance with this Section 7.0, together
with interest, will be payable in a lump sum as soon as administratively
practicable after the date of the Employee’s death and all other Deferred
Compensation Separation Benefits will be payable in accordance with the payment
schedule applicable to each payment or benefit. Each payment and benefit payable
under this Agreement is intended to constitute separate payments for purposes of
Section 1.409A-2(b)(2) of the Treasury Regulations. The foregoing
provisions are intended to comply with the requirements of Section 409A so
that none of the severance payments and benefits to be provided hereunder will
be subject to the additional tax imposed under Section 409A, and any
ambiguities herein will be interpreted to so comply. The Employee and the
Company agree to work together in good faith to consider amendments to this
Employment Agreement and to take such reasonable actions which are necessary,
appropriate or desirable to avoid imposition of any additional tax or income
recognition prior to actual payment to the Employee under Section 409A.
During any period in which any Deferred Compensation Separation Benefits to
Employee are deferred pursuant to the foregoing, Employee shall be entitled to
interest on the deferred amount(s) at a per annum rate equal to the highest rate
of interest applicable to six-month non-callable certificates of deposit with
daily compounding offered by the following institutions: Citibank N.A., Xxxxx
Fargo Bank, N.A. or Bank of America, on the date of such separation from
service.
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8.0. Limitation on
Payments.
In the
event that the severance and other benefits provided for in this Agreement or
otherwise payable to Employee (i) constitute “parachute payments” within the
meaning of Section 280G of the Code and (ii) but for this Section 8.0, would be
subject to the excise tax imposed by Section 4999 of the Code, then Employee’s
severance benefits under the foregoing clause (i) will be either:
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(a)
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delivered
in full; or
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(b)
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delivered
as to such lesser extent as would result in no portion of such severance
benefits being subject to excise tax under Section 4999 of the
Code,
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Whichever
of the foregoing amounts, taking into account the applicable federal, state and
local income taxes and the excise tax imposed by Section 4999, results in the
receipt by Employee on an after-tax basis, of the greatest amount of severance
benefits, notwithstanding that all of some portion of such severance benefits
may be taxable under Section 4999 of the Code. If a reduction in severance and
other benefits constituting “parachute payments” is necessary so that benefits
are delivered to a lesser extent, reduction shall occur in the following order:
(i) reduction of cash payments; (ii) cancellation of awards granted “contingent
on a change in ownership or control” (within the meaning of Code
Section 280G); (iii) cancellation of accelerated vesting of equity awards;
and (iv) reduction of employee benefits. In the event that acceleration of
vesting of equity award compensation is to be reduced, such acceleration of
vesting shall be cancelled in the reverse order of the date of grant of the
Employee’s equity awards. Unless the Company and Employee otherwise agree in
writing, any determination required under this Section 8.0 will
be made in writing by an independent firm (the “Firm”)
immediately prior to Change of Control, whose determination will be conclusive
and binding upon the Employee and the Company for all purposes. For purposes of
making the calculations required by this Section 8.0, the
Firm may make reasonable assumptions and approximations concerning applicable
taxes and may rely on reasonable, good faith interpretations concerning the
application of Sections 280G and 4999 of the Code. The Company and Employee
will furnish to the Firm such information and documents as the Firm may
reasonably request in order to make a determination under this Section 8.0. The
Company will bear all costs the Firm may reasonably incur in connection with any
calculations contemplated by this Section.
9.0. Definitions.
In
addition to the words and terms elsewhere defined in this Employment Agreement,
certain capitalized words and terms used herein shall have the meanings given to
them by the definitions and descriptions in this Section 9.0, unless
the context or use indicates another or different meaning or intent, and such
definition shall be equally applicable to both the singular and plural forms of
any of the capitalized words and terms herein defined. The following
words and terms are defined terms under this Employment Agreement:
(a) “Accrued
Obligations” shall include (i) any unpaid Base Salary through the
Termination Date and any accrued PTO in accordance with the Company’s policy;
(ii) any unpaid amounts due under any Cash Incentive Plan earned with respect to
any fiscal year ending on or prior to the Termination Date; (iii) reimbursement
for any un-reimbursed business expenses incurred through the Termination Date;
and (iv) all other payments, benefits or fringe benefits to which Employee may
be entitled under the terms of any applicable compensation arrangement or
benefit, equity or fringe benefit plan or program or grant or this Employment
Agreement.
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(b) A termination
for “Cause”
shall mean a termination of this Employment Agreement by reason of a
determination by two-thirds (2/3) of the members of the Board voting that
Employee:
(i) Has engaged
in willful neglect (other than neglect resulting from his incapacity due to
physical or mental illness) or willful misconduct in the performance of his
duties for the Company under this Employment Agreement;
(ii) Has engaged
in willful conduct the consequences of which are materially adverse to the
Company, monetarily or otherwise;
(iii) Has
materially breached the terms of this Employment Agreement, and such breach
persisted after notice thereof from the Company and a reasonable opportunity to
cure; or
(iv) Has been
convicted of (or has plead guilty or no contest to) any felony other than a
traffic violation.
(c) A “Change of
Control” shall be deemed to have occurred upon:
(i) The
consummation of a merger or consolidation of the Company with or into another
entity or any other corporate reorganization, if more than 50% of the combined
voting power of the continuing or surviving entity's securities outstanding
immediately after such merger, consolidation or other reorganization is owned by
persons who were not stockholders of the Company immediately prior to such
merger, consolidation or other reorganization; provided, however, that a
public offering of the Company’s securities shall not constitute a corporate
reorganization;
(ii) The sale,
transfer, or other disposition of all or substantially all of the Company’s
assets; or
(iii) Any
transaction as a result of which any person is the “beneficial owner” (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing more than 50% of the total voting power
represented by the Company’s then outstanding voting securities. For purposes of
this subparagraph
(iii), the term “person” shall have the same meaning as when used in
sections 13(d) and 14(d) of the Exchange Act, but shall exclude (x) a trustee or
other fiduciary holding securities under an Employee benefit plan of the Company
or of a subsidiary and (y) a corporation owned directly or indirectly by the
stockholders of the Company in substantially the same proportions as their
ownership of the common stock of the Company.
(d) The term
“Disability”
shall be as defined in the Company’s Long-Term Disability Plan.
(e) The term
“Good
Reason” shall mean the occurrence of any of the following without
Employee’s prior written consent during the Employment Period, which occurrence
continues for 30 days without being cured after written notice thereof from
Employee to the Board:
(i) A material
diminution in the Employee’s base compensation;
(ii) A material
diminution in the Employee’s authority, duties or responsibilities;
(iii) Any other
action or inaction that constitutes a material breach by the Company of this
Agreement.
(f) The term
“Retirement”
shall mean retirement upon “normal retirement age” as defined in the Company’s
401(k) retirement plan.
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10.0. Return of
Property.
Employee
agrees, upon the termination of his employment with the Company, to return all
physical, computerized, electronic or other types of records, documents,
proposals, notes, lists, files and any and all other materials, including
without limitation, computerized and/or electronic information that refers,
relates or otherwise pertains to the Company and/or its subsidiaries, and any
and all business dealings of said persons and entities. In addition, Employee
shall return to the Company all property and equipment that Employee has been
issued during the course of his employment or which he otherwise currently
possesses, including but not limited to, any computers, cellular phones,
personal digital assistants, pagers and/or similar items. Employee
shall immediately deliver to the Company any such physical, computerized,
electronic or other types of records, documents, proposals, notes, lists, files,
materials, property and equipment that are in Employee’s
possession. Employee further agrees that he will immediately forward
to the Company any business information regarding the Company and/or its
subsidiaries that has been or is inadvertently directed to Employee following
his last day of employment with the Company. The provisions of this
Section 10.0
are in addition to any other written agreements on this subject that Employee
may have with the Company and/or its subsidiaries, and are not meant to and do
not excuse any additional obligations that Employee may have under such
agreements.
11.0. Notices.
For the
purposes of this Employment Agreement, notices and all other communications
provided for hereunder shall be in writing and shall be deemed to have been duly
given when personally delivered or sent by certified mail, return receipt
requested, postage prepaid, or by expedited (overnight) courier with established
national reputation, shipping prepaid or billed to sender, in either case
addressed to the respective addresses last given by each Party to the other
(provided that all notices to the Company shall be directed to the attention of
the Chief Employee Officer) or to such other address as either Party may have
furnished to the other in writing in accordance herewith. All notices and
communication shall be deemed to have been received on the date of delivery
thereof, or on the second day after deposit thereof with an expedited courier
service, except that notice of change of address shall be effective only upon
receipt. Notices shall be addressed as follows:
If to the
Company:
000 Xxxx
Xxxxxxx Xxxxx, Xxxxx 000, Xxxxx, Xxxxx 00000.
If to the
Employee:
To the
address set forth on the Signature Page to this Agreement.
12.0. Life
Insurance.
The
Company may, at any time after the execution of this Employment Agreement, apply
for and procure as owner and for its own benefit, life insurance on Employee, in
such amounts and in such form or forms as the Company may
determine. The Employee shall, at the request of the Company, submit
to such medical examinations, supply such information, and execute such
documents as may be required by the insurance company or companies to whom the
Company has applied for such insurance. Employee hereby represents
that to his knowledge he is in good physical and mental condition and is not
under the influence of alcohol, drugs or similar substance.
13.0. Confidentiality.
Employee
agrees not to disclose or reveal to any person or entity outside the Company any
secret or confidential information concerning any Company product, process,
equipment, machinery, design, formula, business, or other activity
(collectively, “Confidential
Information”) without prior permission of the Company in writing.
Confidential Information shall not include any information which is in the
public domain or becomes publicly known through no wrongful act on the part of
Employee or breach of this Employment Agreement. Employee
acknowledges that the Confidential Information is vital, sensitive, confidential
and proprietary to the Company. The obligation to protect the secrecy of such
information continues after employment with Company may be
terminated. In furtherance of this agreement, Employee acknowledges
that all Confidential Information which Employee now possesses, or shall
hereafter acquire, concerning and pertaining to the business and secrets of the
Company and all inventions or discoveries made or developed, or suggested by or
to Employee during said term of employment relating to Company’s business shall,
at all times and for all purposes, be regarded as acquired and held by Employee
in his fiduciary capacity and solely for the benefit of Company.
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14.0. Work Product
Assignment.
Employee
agrees that all inventions, innovations, improvements, technical information,
systems, software developments, methods, designs, analyses, drawings, reports,
service marks, trademarks, trade names, logos and all similar or related
information (whether patentable or unpatentable) which relate to the actual or
anticipated business, research and development or existing or future products or
services of the Company or of any of its subsidiaries or affiliates, and which
are conceived, developed or made by Employee (whether or not during usual
business hours and whether or not alone or in conjunction with any other person)
while employed by the Company, together with all patent applications, letters
patent, trademark, trade name and service xxxx applications or registrations,
copyrights and reissues thereof that may be granted for or upon any of the
foregoing (collectively referred to herein as the “Work
Product”), belong in all instances to the Company or its subsidiaries or
affiliates, as applicable, and Employee hereby assigns to the Company all Work
Product and all of his interest therein. Employee will promptly
perform all actions reasonably requested by the CEO (whether during or after his
employment with the Company) to establish and confirm the ownership of such Work
Product (including, without limitation, the execution and delivery of
assignments, consents, powers of attorney and other instruments) by the Company
or its subsidiaries or affiliates, as applicable, and to provide reasonable
assistance to the Company or any of its subsidiaries and affiliates in
connection with the prosecution of any applications for patents, trademarks,
trade names, service marks or reissues thereof or in the prosecution or defense
of interferences relating to any Work Product.
15.0. Covenant Not to
Compete.
Section
15.01. Acknowledgment of Employee.
Employee acknowledges that his employment with the Company has special, unique
and extraordinary value to the Company; that the Company has a lawful interest
in protecting its investment in entrusting its Confidential Information to him;
and that the Company would be irreparably damaged if Employee were to provide
services to any person or entity in violation of this Employment Agreement
because in performing such services Employee would inevitably disclose the
Company’s Confidential Information to third parties and that the restrictions,
prohibitions and other provision of this Section 15.0 are
reasonable, fair and equitable in scope, terms, and duration to protect the
legitimate business interests of the Company, and are a material inducement to
the Company to enter into this Employment Agreement.
Section
15.02. Non-Competition Covenant.
Without the consent in writing of the Board, Employee will not, during the
Employment Agreement and, in the event of the termination of Employee’s
employment by the Company for Cause or by the Employee
without Good Reason,
for a period of 12 months after such termination of employment (if by the
Company for Cause or by
Employee without Good
Reason), acting alone or in conjunction with others, directly or indirectly
engage (either as owner, investor, partner, stockholder, employer, employee,
consultant, advisor or director) in activities on behalf of any entity or
entities engaged in waste processing and disposal services for low-level
radioactive-wastes, naturally occurring, accelerator produced, and exempt
radioactive materials, and hazardous and PCB wastes. It is agreed that the
ownership of not more than five percent (5%) of the equity securities of any
company having securities listed on an exchange or regularly traded in the
over-the-counter market shall not, of itself, be deemed inconsistent with this
Section
15.02.
Section
15.03. Non-Solicitation of Vendors and
Customers. Without the consent in writing of the Board, after Employee’s
employment has terminated for any reason, Employee will not, during the
Employment Agreement and for a period of 18 months thereafter if Employee’s
employment is terminated by the Company for Cause or by the Employee
without Good Reason or
due to a Change in Control, acting alone or in conjunction with others, either
directly or indirectly induce any vendors or customers of the Company to curtail
or cancel their business with the Company or any of its
subsidiaries.
Section
15.04. Non-Solicitation of
Employees. Without the consent in writing of the Board, after Employee’s
employment has terminated for any reason, Employee will not, during the
Employment Agreement and for a period of 24 months thereafter, acting alone or
in conjunction with others, either directly or indirectly induce, or attempt to
influence, any employee of the Company or any of its subsidiaries to terminate
his or her employment.
8
16.0. Remedies.
Section
16.01. Specific Performance; Costs of
Enforcement. Employee acknowledges
that the covenants and agreements, which he has made in this Employment
Agreement are reasonable and are required for the reasonable protection of the
Company and its business. Employee agrees that the breach of any
covenant or agreement contained herein will result in irreparable injury to the
Company and that, in addition to all other remedies provided by law or in equity
with respect to the breach of any provision of this Employment Agreement, the
Company and its successors and assigns will be entitled to enforce the specific
performance by Employee of his obligations hereunder and to enjoin him from
engaging in any activity in violation hereof and that no claim by Employee
against the Company or its successors or assigns will constitute a defense or
bar to the specific enforcement of such obligations. Employee agrees
that the Company and any successor or assign shall be entitled to recover all
costs of enforcing any provision of this Employment Agreement, including,
without limitation, reasonable attorneys’ fees and costs of
litigation. In the event of a breach by Employee of any covenant or
agreement contained herein, the running of the restrictive covenant periods (but
not of Employee’s obligations hereunder) shall be tolled during the period of
the continuance of any actual breach or violation.
Section
16.02. Remedy for Breach of Restrictive
Covenants. The provisions of Section 13.0 (Confidentiality), Section 14.0 (Work Product Assignment), and
Section 15.0
(Covenant Not to
Compete) are separate and distinct commitments independent of each of the
other Sections. Accordingly, notwithstanding any other provisions of this
Employment Agreement, Employee agrees that damages in the event of a breach or a
threatened breach by Employee of Section 13.0 (Confidentiality) and Section 15.0 (Covenant Not to Compete) would
be difficult if not impossible to ascertain and an inadequate remedy, and it is
therefore agreed that the Company, in addition to and without limiting any other
remedy or right it may have, shall have the right to an immediate injunction or
other equitable relief enjoining any such threatened or actual breach, without
any requirement to post bond or provide similar security. The
existence of this right shall not preclude the Company from pursuing any other
rights and remedies at law or in equity that the Company may have, including
recovery of damages for any breach of such Sections.
Section
16.03. Right to Cancel
Payments.
(a) In addition
to the remedies set forth above in Sections 16.01 and
16.02, the Company may, at the sole discretion of the Board, cancel,
rescind, suspend, withhold or otherwise limit or restrict the Severance Payment
under Section
5.02 (Termination by
the Company Without Cause or by the Employee For Good Reason) (which
excludes any other payments made to Employee under Section 2.0 and under
Sections 5.0 and
6.0 above), whether vested or not, at any time if:
(i) Employee is
not in compliance with all of the provisions of Section 13.0 (Confidentiality), Section 14.0 (Work Product Assignment) and
Section 15.0
(Covenant Not to
Compete); and
(ii) Such
non-compliance has been finally determined by binding arbitration pursuant to
Section 17.0
(Dispute
Resolution).
(b) As a
condition to the receipt of any Severance Payment, Employee shall certify to the
Company that he is in compliance with the provisions set forth
above.
(c) In the event
that Employee fails to comply with the provisions set forth in Section 13.0 (Confidentiality), Section 14.0 (Work Product Assignment)
and/or Section
15.0 (Covenant Not to
Compete), as finally determined by binding arbitration pursuant to Section 17.0 (Dispute Resolution), prior to
or within twelve (12) months after any payment by the Company with respect to
any Severance Payment under Section 5.02, such
payment may be rescinded by the Company within 12 months
thereafter. In the event of such rescission, Employee shall pay to
the Company, within 12 months of the Company’s rescission of one or more
Severance Payments, the amount of any such payment(s) received as a result of
the rescinded payment(s), without interest, in such further manner and on such
further terms and conditions as may be required by the Company; and the Company
shall be entitled to set-off against the amount of such payment any amount owed
to Employee by the Company, other than wages.
9
(d) Employee
acknowledges that the foregoing provisions are fair, equitable and reasonable
for the protection of the Company’s interests in a stable workforce and the time
and expense the Company has incurred to develop its business and its customer
and vendor relationships.
17.0. Dispute
Resolution.
Except as
described above in Section 16.02 (Remedy for Breach of Restrictive
Covenants):
Section
17.01. Initial Negotiations. Company
and Employee agree to resolve all disputes arising out of their employment
relationship by the following alternative dispute resolution process: (a) the
Company and Employee agree to seek a fair and prompt negotiated resolution; but
if this is not possible, (b) all disputes shall be resolved by binding
arbitration; provided,
however, that during this process, at the request of either Party, made
not later than 60 days after the initial arbitration demand, the Parties agree
to attempt to resolve any dispute by non-binding, third-party intervention,
including either mediation or evaluation or both but without delaying the
arbitration hearing date. BY ENTERING INTO THIS EMPLOYMENT AGREEMENT,
BOTH PARTIES GIVE UP THEIR RIGHT TO HAVE THE DISPUTE DECIDED IN COURT BY A JUDGE
OR JURY.
Section
17.02. Mandatory Arbitration. Any
controversy or claim arising out of or connected with Employee’s employment at
the Company, including but not limited to claims for compensation or severance
and claims of wrongful termination, age, sex or other discrimination or civil
rights shall be decided by arbitration. In the event the Parties
cannot agree on an arbitrator, then the arbitrator shall be selected by the
administrator of the American Arbitration Association (“AAA”)
office in Salt Lake City, Utah. The arbitrator shall be an attorney
with at least 15 years’ experience in employment law in Idaho. Boise,
Idaho shall be the site of the arbitration. All statutes of limitation, which
would otherwise be applicable, shall apply to any arbitration proceeding
hereunder. Any issue about whether a controversy or claim is covered
by this Employment Agreement shall be determined by the arbitrator.
Section
17.03. Arbitration
Rules.
(a) The
arbitration shall be conducted in accordance with this Employment Agreement,
using as appropriate the AAA Employment Dispute Resolution Rules in effect on
the date hereof. The arbitrator shall not be bound by the rules of
evidence or of civil procedure, but rather may consider such writings and oral
presentations as reasonable business people would use in the conduct of their
day-to-day affairs, and may require both Parties to submit some or all of their
respective cases by written declaration or such other manner of presentation as
the arbitrator may determine to be appropriate. The Parties agree to
limit live testimony and cross-examination to the extent necessary to ensure a
fair hearing on material issues.
(b) The
arbitrator shall take such steps as may be necessary to hold a private hearing
within 120 days of the initial request for arbitration and to conclude the
hearing within two days; and the arbitrator's written decision shall be made not
later than 14 calendar days after the hearing. The Parties agree that
they have included these time limits in order to expedite the proceeding, but
they are not jurisdictional, and the arbitrator may for good cause allow
reasonable extensions or delays, which shall not affect the validity of the
award. Both written discovery and depositions shall be
allowed. The extent of such discovery will be determined by the
Parties and any disagreements concerning the scope and extent of discovery shall
be resolved by the arbitrator. The written decision shall contain a
brief statement of the claim(s) determined and the award made on each
claim. In making the decision and award, the arbitrator shall apply
applicable substantive law. The arbitrator may award injunctive
relief or any other remedy available from a judge, including consolidation of
this arbitration with any other involving common issues of law or fact which may
promote judicial economy, and may award attorneys’ fees and costs to the
prevailing Party, but shall not have the power to award punitive or exemplary
damages. The Parties specifically state that the agreement to limit
damages was agreed to by the Parties after negotiations.
10
18.0. Attorneys’
Fees.
Section
18.01. Prevailing Party Entitled to
Attorneys’ Fees. In any action at law or in equity to enforce any of the
provisions or rights under this Employment Agreement, the unsuccessful Party to
such litigation, as determined by the arbitrator in accordance with the dispute
resolution provisions set forth above, shall pay the successful Party or Parties
all costs, expenses and reasonable attorneys’ fees incurred therein by such
Party or Parties (including, without limitation, such costs, expenses and fees
on appeal), excluding, however, any time spent by Company employees, including
in-house legal counsel, and if such successful Party or Parties shall recover
judgment in any such action or proceeding, such costs, expenses and attorneys’
fees shall be included as part of such judgment.
Section
18.02. Limitation on Fees.
Notwithstanding the foregoing provision, in no event shall the successful Party
or Parties be entitled to recover an amount from the unsuccessful Party for
costs, expenses and attorneys’ fees that exceeds the unsuccessful Party’s or
Parties’ costs, expenses and attorneys’ fees in connection with the action or
proceeding.
19.0. Miscellaneous
Provisions.
Section
19.01. Prior Employment Agreements.
Employee represents and warrants that Employee’s performance of all the terms of
this Employment Agreement and as an Employee of the Company does not, and will
not, breach any employment agreement, arrangement or understanding or any
agreement, arrangement or understanding to keep in confidence proprietary
information acquired by Employee in confidence or in trust prior to Employee’s
employment by the Company. Employee has not entered into, and shall not enter
into, any agreement, arrangement or understanding, either written or oral, which
is in conflict with this Employment Agreement or which would be violated by
Employee entering into, or carrying out his obligations under, this Employment
Agreement. This Employment Agreement supersedes any former oral
agreement and any former written agreement heretofore executed relating
generally to the employment of Employee with the Company, including without
limitation, the Prior Agreement.
Section
19.02. Assignment; Binding Effect.
This Employment Agreement may not be assigned by Employee in whole or in part.
Notwithstanding the foregoing, this Employment Agreement shall inure to the
benefit of and be enforceable by Employee’s personal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees. If Employee should die while any amounts would still be
payable to him hereunder if he had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Employment Agreement to Employee’s estate.
Section
19.03. Headings. Headings used in
this Employment Agreement are for convenience only and shall not be used to
interpret or construe its provisions.
Section
19.04. Waiver. No provision of this
Employment Agreement may be waived or discharged unless such waiver or discharge
is agreed to in writing and signed by the Chairman of the Board. No waiver by
either Party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Employment Agreement to be
performed by such other Party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent
time.
Section
19.05. Amendments. No amendments or
variations of the terms and conditions of this Employment Agreement shall be
valid unless the same is in writing and signed by the Parties
hereto.
Section
19.06. Severability. The invalidity
or unenforceability of any provision of this Employment Agreement, whether in
whole or in part, shall not in any way affect the validity and/or enforceability
of any other provision contained herein. Any invalid or unenforceable provision
shall be deemed severable to the extent of any such invalidity or
unenforceability. It is expressly understood and agreed that while
the Company and Employee consider the restrictions contained in this Employment
Agreement reasonable for the purpose of preserving for the Company the good
will, other proprietary rights and intangible business 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 this Employment
Agreement is an unreasonable or otherwise unenforceable restriction against
Employee, the provisions of such clause shall not be rendered void but shall be
deemed amended to apply as to maximum time and territory and to such other
extent as such court may judicially determine or indicate to be
reasonable.
11
Section
19.07. Governing Law. This
Employment Agreement shall be construed and enforced pursuant to the laws of the
State of Idaho.
Section
19.08. Employee Officer Status.
Employee acknowledges that he may be deemed to be an “Employee officer” of the
Company for purposes of the Securities Act of 1933, as amended (the “1933
Act”), and the Securities Exchange Act of 1934, as amended (the “1934 Act”)
and, if so, he shall comply in all respects with all the rules and regulations
under the 1933 Act and the 1934 Act applicable to him in a timely and
non-delinquent manner. In order to assist the Company in complying
with its obligations under the 1933 Act and 1934 Act, Employee shall provide to
the Company such information about Employee as the Company shall reasonably
request including, but not limited to, information relating to personal history
and stockholdings. Employee shall report to the Secretary of the
Company or other designated officer of the Company all changes in beneficial
ownership of any shares of the Company’s Common Stock deemed to be beneficially
owned by Employee and/or any members of Employee's immediate
family. Employee further agrees to comply with all requirements
placed on him by the Xxxxxxxx-Xxxxx Act of 2002, Public Law
107-204.
Section
19.09. Tax Withholding. To the
extent required by law, the Company shall deduct or withhold from any payments
under this Employment Agreement all applicable Federal, state or local income
taxes, Social Security, FICA, FUTA and other amounts that the Company determines
in good faith are required by law to be withheld.
Section
19.10. Counterparts. This Employment
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute but one
document.
Section
19.11. Exhibits. Any Exhibits
attached hereto are incorporated herein by reference and are an integral part of
this Employment Agreement and are deemed incorporated herein by
reference.
Section
19.12. Retention of Counsel.
Employee acknowledges that he has had the opportunity to review this Employment
Agreement and the transactions contemplated hereby with his own legal
counsel.
[The remainder of this page
intentionally left blank]
12
IN WITNESS WHEREOF, this
Employee Employment Agreement has been duly executed by the Company and Employee
as of the date first above written.
|
EMPLOYEE:
/s/ Xxxxx
Xxxx
Xxxxx
Xxxx
Address
for Notice:
________________________________________
________________________________________
COMPANY:
American
Ecology Corporation
By:
/s/ Xxxxxxx X.
Xxxxxx
Name:
Xxxxxxx X. Xxxxxx
Title:
Chairman, Board of Directors
|
13
Exhibit A
OTHER
BENEFITS
1. Annual Equity
Grants:
Employee
shall receive three annual equity grants, with an aggregate value of $90,000,
each year through 2012, provided Employee remains employed as of each Grant
Date. Each “Grant
Date” shall be on the 3rd full day of trading after announcement of the
Company’s full fiscal year earnings for the preceding year (e.g., by late February or
early March 2010, 2011 and 2012). The equity grants shall be priced based on the
closing market price (“FMV”) of
the Company’s common stock on the Grant Date. Each year’s equity grants shall be
as follows:
|
Equity
Xxxxx
|
Xxxxx/Strike
Price
|
Percent
of Total Grant
|
Vesting
|
|
Restricted
Stock
|
FMV@Grant
Date
|
50%
|
12-month
vesting
|
|
Stock
Options
|
FMV@Grant
Date
|
50%
|
36-month
vesting
|
14
