EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of October 14, 1997 (this "Agreement"),
by and between JTM Industries, Inc. (the "Company") and R. Xxxxxxx Xxxxxxx (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 Executive
Officer of the Company; and
WHEREAS, the Executive desire 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) 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
Executive Officer for the "Employment Period" as defined in Section 3. In
addition, the Company shall use its best efforts to cause the Executive to be
elected Chairman of the Board of Directors of the Company (the "Board") during
the Employment Term. The Executive, in his capacity as Chief Executive 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. 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 $150,000 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 form 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 thee 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, shall be maintained 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 prior 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 deliver any documents requested by, 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
affiliates, or to become employed by the Executive or any affiliate or
associate of the Executive or any person by which the Executive is
employed, or interfering in any other way 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 Xxxx X. Everest.
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 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 an equity interest in the Company to which the Executive may
become a party on or after the Commencement Date after written notice
thereof from 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 milers 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 to 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 Covenant. 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 repair, 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 event 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 the remedies at law for
any breach or threat of breach by him of any of the provisions of Section 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 thereof,
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 and 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 other 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:
R. Xxxxxxx Xxxxxxx
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, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx, Esq.
13. Severability. Wherever there is any conflict between any provision
of this Agreement and any statute, law, regulation or judicial precedent, the
latter shall prevail, but in such event the provisions of this Agreement thus
affected shall be curtailed and limited only to the extent necessary to bring
them within the requirements of the law. In the event that any provision of this
Agreement shall be held by a court of proper jurisdiction to be indefinite,
invalid, void or voidable or otherwise unenforceable, the balance of the
Agreement shall continue in full force and effect unless such construction would
clearly be contrary to the intentions of the parties or would result in an
unconscionable injustice.
14. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
15. Effect of Termination. Notwithstanding anything to the contrary
contained herein, this Agreement or the Executive's employment is terminated
pursuant to Section 9 or otherwise expires, the provisions of Sections 5, 6, 7,
8, 9, 10, 12, 13, 15, 16, 17 and 18 shall continue in full force and effect.
16. Disputes. Except as necessary to obtain the relief specified in
Section 10(a), any claim or controversy arising out of or relating to this
Agreement, or any breach thereof, or otherwise arising out of or relating to the
Executive's employment, compensation and benefits with the Company or the
termination thereof, shall be settled by arbitration in Salt Lake City, Utah in
accordance with the rules established by the American Arbitration Association,
_provided,_however_, that the parties agree that (i) the arbitrator shall be
prohibited from disregarding, adding to or modifying the terms of this
Agreement; and (ii) the arbitrator shall be required to follow established
principles of substantive law and the law governing burdens of proof. Any claim
or controversy not submitted to arbitration in accordance with this Section 16
shall be considered waived and, thereafter, no arbitration panel or tribunal or
court shall have the power to rule or make any award on any such claim or
controversy. The award rendered in any arbitration proceeding held under this
Section 16 shall be final and binding, and judgment upon the award may be
entered in any court having jurisdiction thereof.
17. Miscellaneous; Choice of Law. This Agreement constitutes the entire
agreement, and supersedes all prior agreements, of the parties hereto relating
to the subject matter hereof, and there are no written or oral terms or
representations made by either party other than those contained herein. This
Agreement shall be governed by and construed in accordance with the domestic
laws of the State of Utah, without giving effect to any choice of law or
conflict of law provision or rule (whether of the State of Utah or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Utah.
18. Indemnification. In the event the Executive is made, or threatened
to be made, a party to any legal action or proceeding, whether civil or
criminal, by reason of the fact that the Executive is or was an officer or
director of the Company or any subsidiary of the Company, the Executive shall be
indemnified by the Company, and the Company shall pay the Executive's related
expenses when and as incurred, all to the fullest extent permitted by law,
provided, however, that no indemnification shall be made hereunder with respect
to payments and expenses incurred in relation to (i) matters as to which the
Executive shall not have acted in good faith and in the reasonable belief that
his action was in the best interest of the Company, or (iii) matters as to which
are otherwise prohibited by law.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement
as of the day and year first above written.
JTM INDUSTRIES, INC.
/s/ J. I. Everest
---------------------
By: J.I. Everest II
Title: Treasurer & CFO
EXECUTIVE
/s/ R. Xxxxxxx Xxxxxxx
------------------------
R. Xxxxxxx Xxxxxxx
