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EXHIBIT 10(iii).38
FORM OF EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (("Agreement"), entered into as of this 10th
day of March, 1996, by and between OHM Corporation, an Ohio corporation, (the
"Company"), and ______________ (the "Executive");
WITNESSETH:
WHEREAS, the Executive is a senior executive of the Company and has
made and is expected to continue to make major contributions to the
administration, profitability, growth and financial strength of the Company;
WHEREAS, the Company recognizes that, as is the case for most publicly
held companies, the possibility of a Change in Control (as that term is
hereafter defined) exists;
WHEREAS, the Company desires to assure itself of both present and
future continuity of management in the event of a Change in Control and desires
to establish certain minimum compensation rights of its key senior executive
officers, including the Executive, applicable in the event of a Change in
Control;
WHEREAS, the Company wishes to ensure that its senior executives are
not practically disabled from discharging their duties upon a Change in Control;
WHEREAS, this Agreement is not intended to alter materially the
compensation and benefits which the Executive could reasonably expect to receive
from the Company absent a Change in Control and, accordingly, although effective
and binding as of the date hereof, this Agreement shall become operative only
upon the occurrence of a Change in Control;
WHEREAS, the Executive is willing to render services to the Company on
the terms and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, the Company and the Executive agree as follows:
1. Operation of Agreement:
(a) This Agreement shall be effective and binding immediately upon its
execution, but, anything in this Agreement to the contrary notwithstanding, this
Agreement shall not be operative unless and until there shall have occurred a
Change in Control. For purposes of this Agreement, a "Change in Control" shall
have occurred if at any time during the Term (as that term is hereafter defined)
any of the following events shall occur:
(i) The Company is merged, or consolidated or reorganized into
or with another corporation or other legal person, and as
a result of such merger, consolidation or reorganization
less than a majority of the combined voting power of the
then-outstanding securities of such corporation or person
immediately after such on are held in the aggregate by the
holders of Voting Stock (as that term is hereinafter
defined) of the Company immediately prior to such
transaction;
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(ii) The Company sells all or substantially all of its assets
to any other corporation or other legal person, and less
than a majority of the combined voting power of the
then-outstanding securities of such corporation or person
immediately after such transaction are held in the
aggregate by the holders of Voting Stock of the Company
immediately prior to such sale;
(iii) There is a report filed on Schedule 13D or Schedule 14D-1
(or any successor schedule, form or report), each as
promulgated pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act"), disclosing that any
person (as the term "person" is used in Section 13(d)(3)
or Section 14(d)(2) of the Exchange Act) has become the
beneficial owner (as the term "beneficial owner" is
defined under Rule 13d-3 or any successor rule or
regulation promulgated under the Exchange Act) of
securities representing 25% or more of the combined voting
power of the then-outstanding securities entitled to vote
generally in the election of directors of the Company
("Voting Stock");
(iv) The Company files a report or proxy statement with the
Securities and Exchange Commission pursuant to the
Exchange Act disclosing in response to Form 8-K or
Schedule 14A (or any successor schedule, form or report or
item therein) that a change in control of the Company has
or may have occurred or will or may occur in the future
pursuant to any then-existing contract or transaction; or
(v) If during any period of two consecutive years, individuals
who at the beginning of any such period constitute the
Directors of the Company cease for any reason to
constitute at least a majority thereof, unless the
election, or the nomination for election by the Company's
stockholders, of each Director of the Company first
elected during such period was approved by a vote of at
least two-thirds of the Directors of the Company then
still in office who were Directors of the Company at the
beginning of any such period.
Notwithstanding the foregoing provisions of Section 1 (a)(iii) or 1 (a)(iv)
hereof, a "Change in Control" shall not be deemed to have occurred for purposes
of this Agreement solely because (i) the Company, (ii) an entity in which the
Company directly or indirectly beneficially owns 50% or more of the voting
securities of such entity, or (iii) any Company-sponsored employee stock
ownership plan or any other employee benefit plan of the Company, either files
or becomes obligated to file a report or a proxy statement under or in response
to Schedule 13D, Schedule 14D-1, Form 8-K or Schedule 14A (or any successor
schedule, form or report or item therein) under the Exchange act, disclosing
beneficial ownership by it of shares of Voting Stock, whether in excess of 25%
or otherwise, or because the Company reports that a change in control of the
Company has or may have occurred or will or may occur in the future by reason of
such beneficial ownership.
(b) Upon the occurrence of a Change in Control at any time during the
Term, this Agreement shall become immediately operative.
(c) The period during which this Agreement shall be in effect (the
"Term") shall commence as of the date hereof and shall expire as of the
expiration of the Period of Employment (as that term is hereinafter defined),
provided, however, that unless the Company has commenced discussions with a
third party that ultimately results in a Change in Control, the term of this
Agreement shall be
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terminated as of January 1 of any year if (i) the Company or the Executive shall
have given notice on or prior to December 31 of the prior year that it or he, as
the case may be, does not wish to have the Term extended, or (ii) prior to a
Change in Control, the Executive ceases for any reason to be an officer of the
Company, thereupon the Term shall be deemed to have expired and this Agreement
shall immediately terminate and be of no further effect.
(d) Notwithstanding any other provision of this Agreement to the
contrary, a Change in Control described in subparagraphs 1(a)(iii) or l(a)(iv)
(describing an event under subparagraph l(a)(iii)) shall not be deemed to have
occurred and this Agreement shall be of no force or effect with respect to such
event of Change in Control if the Board of Directors of the Company (the
"Board'), by vote of three-quarters of the members of the Board, specifically
determines, prior to any such Change in Control, that such event shall not
constitute a Change in Control for purposes of this Agreement.
2. Employment: Period of Employment:
(a) Subject to the terms and conditions of this Agreement, upon the
occurrence of a Change in Control, the Company shall continue the Executive in
its employ and the Executive shall remain in the employ of the Company for the
period set forth in Section 2(b) hereof (the "Period of Employment"), in the
position and with substantially the same duties and responsibilities that he had
immediately prior to the Change in Control, or to which the Company and the
Executive may hereafter mutually agree in writing. Throughout the Period of
Employment, the Executive shall devote substantially all of his time during
normal business hours (subject to vacations, sick leave and other absences in
accordance with the policies of the Company as in effect for senior executives
immediately prior to the Change in Control) to the business and affairs of the
Company, but nothing in this Agreement shall preclude the Executive from
devoting reasonable periods of time during normal business hours to (i) serving
as a director, trustee or member of or participant in any organization or
business so long as such activity would not constitute Competitive Activity (as
that term is hereafter defined) if conducted by the Executive after the
Executive's Termination Date (as that term is hereafter defined), (ii) engaging
in charitable and community activities, or (iii) managing his personal
investments.
(b) The Period of Employment shall commence on the date of an
occurrence of a Change in Control, and subject only to the provisions of Section
4 hereof, shall continue until the earlier of (i) the expiration of the third
anniversary of the occurrence of the Change in Control, (ii) the Executive's
death, or (iii) the Executive's attainment of age 65; provided, however, that
commencing on each anniversary of the Change of Control, the Period of
Employment shall automatically be extended for an additional year unless, not
later than 90 calendar days prior to such anniversary date, either the Company
or the Executive shall have given written notice to the other that the Term
shall not be so extended.
3. Compensation During Period of Employment:
(a) Upon the occurrence of a Change in Control, the Executive shall
receive during the Period of Employment (i) annual base salary at a rate not
less than the Executive's annual fixed or base compensation (payable monthly or
otherwise as in effect for senior executives of the Company immediately prior to
the occurrence of a Change in Control) or such higher rate as may be determined
from time to time by the Board or the Compensation Committee thereof (the
"Committee") (which base salary at such rate is herein referred to as "Base
Pay") and (ii) an annual amount equal to not less
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than the highest aggregate annual bonus, incentive or other payments of cash
compensation in addition to the amounts referred to in clause (i) above made or
to be made in regard to services rendered in any calendar year during the three
calendar years immediately preceding the year in which the Change in Control
occurred pursuant to any bonus, incentive, profit-sharing performance,
discretionary pay or similar policy, plan, program or arrangement of the Company
or any successor thereto providing benefits at least as great as the benefits
payable thereunder prior to a Change in Control ("Incentive Pay"), provided,
however, that with the prior written consent of the Executive, nothing herein
shall preclude a change in the mix between Base Pay and Incentive Pay so long as
the aggregate cash compensation received by the Executive in any one calendar
year is not reduced in connection therewith or as a result thereof and, provided
further, however, that in no event shall any increase in the Executive's
aggregate cash compensation or any portion thereof in any way diminish any other
obligation of the Company under this Agreement.
(b) For his services pursuant to Section 2(a) hereof, during the Period
of Employment the Executive shall be a full participant in, and shall be
entitled to the perquisites, benefits and services credit for benefits as
provided under, any and all employee retirement income and welfare benefit
policies, plans, programs or arrangements in which senior executives of the
Company participate, including, without limitation any stock option, stock
purchase, stock appreciation, savings, pension, supplemental executive
retirement or other income or welfare benefit, deferred compensation, incentive
compensation, group and/or executive life, health, medical/hospital or other
insurance (whether funded by actual insurance or self-insured by the Company),
disability, salary continuation, expense reimbursement and other employee
benefit policies, plans, programs or arrangements that may now exist or any
equivalent successor policies, plans, programs or arrangements that may be
adopted hereafter by the Company providing perquisites, benefits and service
credit for benefits at least as great as are payable thereunder prior to a
Change in Control (collectively, "Employee Benefits"), provided, however, that
the Executive's rights thereunder shall be governed by the terms thereof and
shall not be enlarged hereunder or otherwise affected hereby. Subject to the
proviso in the immediately preceding sentence if and to the extent such
perquisites, benefits or service credit for benefits are not payable or provided
under any such policy, plan, program or arrangement as a result of the amendment
or termination thereof, then the Company shall itself pay or provide therefor.
Nothing in this Agreement shall preclude improvement or enhancement of any such
Employee Benefits, provided that no such improvement shall in any way diminish
any other obligation of the Company under this Agreement.
(c) The Company has determined that the amounts payable pursuant to
this Section 3 constitute reasonable compensation. Accordingly, notwithstanding
any other provision hereof unless such action would be expressly prohibited by
applicable law, if any amount paid or payable pursuant to this Section 3 is
subject to the excise tax imposed by Section 4999 of the Internal Revenue Code
of 1986, as amended (the "Code"), the Company will pay to the Executive an
additional amount in cash equal to the amount necessary to cause the aggregate
remuneration received by the Executive under this Section 3, including such
additional cash payment (net of all federal, state and local income taxes and
all taxes payable as the result of the application of Sections 280G and 4999 of
the Code) to be equal to the aggregate remuneration the Executive would have
received under this Section 3, excluding such additional payment (net of all
federal, state and local income taxes), as if Sections 280G and 4999 of the Code
(and any successor provisions thereto) had not been enacted into law.
4. Termination Following a Change in Control:
(a) In the event of the occurrence of a Change in Control, this
Agreement may be terminated
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by the Company during the Period of Employment only upon the occurrence of one
or more of the following events:
(i) The Executive's death;
(ii) If the Executive shall become permanently disabled within
the meaning of and begins actually to receive disability
benefits pursuant to, the long-term disability plan in
effect for senior executives of the Company immediately
prior to the Change in Control; or
(iii) For "Cause", which for purposes of this Agreement shall
mean that, prior to any termination pursuant to Section
4(b) hereof the Executive shall have committed:
(A) an intentional act of fraud, embezzlement or
theft in connection with his duties or in the
course of his employment with the Company;
(B) intentional wrongful damage to property of the
Company;
(C) intentional wrongful disclosure of secret
processes or confidential information of the
Company; or
(D) intentional wrongful engagement in any
Competitive Activity; and any such act shall
have been materially and demonstrably harmful
to the Company. For purposes of this Agreement,
no act, or failure to act, on the part of the
Executive shall be deemed "intentional" if it
was due primarily to an error in judgment or
negligence, but shall be deemed 'intentional"
only if done, or omitted to be done, by the
Executive not in good faith and without
reasonable belief that this action or omission
was in the best interest of the Company.
Notwithstanding the foregoing, the Executive
shall not be deemed to have been terminated for
"Cause" hereunder unless and until there shall
have been delivered to the Executive a copy of
a resolution duly adopted by the affirmative
vote of not less than three-quarters of the
Board then in office at a meeting of the Board
called and held for such purpose (after
reasonable notice to the Executive and an
opportunity for the Executive, together with
his counsel, to be heard before the Board),
finding the in the good faith opinion of the
Board, the Executive had committed an act set
forth above in this Section 4(a)(iii) and
specifying the particulars thereof in detail.
Nothing herein shall limit the right of the
Executive or his beneficiaries to contest the
validity or propriety of any such
determination.
(b) In the event of the occurrence of a Change in Control, this
Agreement may be terminated by the Executive during the Period of Employment,
and the Executive shall be entitled to have the right to benefits as provided in
Section 5 hereof, upon the occurrence of one or more of the following events:
(i) Any termination by the Company of the employment of the
Executive prior to the date upon which the Executive shall
have attained age 65, which termination shall be for any
reason other than for Cause or as a result of the death of the
Executive or by reason of the Executive's disability and the
actual receipt of disability benefits in
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accordance with Section 4(a)(i) hereof, or
(ii) Termination by the Executive of his employment with the
Company within three years after the Change in Control upon
the occurrence of any of the following events:
(A) Failure to elect or re-elect the Executive to the
office of the Company which the Executive held
immediately prior to a Change in Control, or the
removal of the Executive as a Director of the Company
(or any successor thereto), if the Executive shall
have been a Director of the Company immediately prior
to the Change in Control;
(B) A significant adverse change in the nature or scope
of the authorities, powers, functions,
responsibilities or duties attached to the position
with the Company which the Executive held immediately
prior to the Change in Control, a reduction in the
aggregate of the Executive's Base Pay and Incentive
Pay received from the Company, or the termination of
the Executive's rights to any Employee Benefits to
which he was entitled immediately prior to the Change
in Control or a reduction in scope or value thereof
without the prior written consent of the Executive,
any of which is not remedied within 10 calendar days
after receipt by the Company of written notice from
the Executive of such change, reduction or
termination, as the case may be;
(C) A determination by the Executive made in good faith
that as a result of a Change in Control and a change
in circumstances thereafter significantly affecting
his position, including, without limitation, a change
in the scope of the business or other activities for
which he was responsible immediately prior to a
Change in Control, that he has been rendered
substantially unable to carry out, has been
substantially hindered in the performance of, or has
suffered a substantial reduction in, any of the
authorities, powers, functions, responsibilities or
duties attached to the position held by the Executive
immediately prior to the Change in Control, which
situation is not remedied within 10 calendar days
after written notice to the Company from the
Executive of such determination;
(D) The liquidation, dissolution, merger, consolidation
or reorganization of the Company or transfer of all
or a significant portion of its business and/or
assets, unless the successor or successors (by
liquidation, merger, consolidation, reorganization or
otherwise) to which all or a significant portion of
its business and/or assets have been transferred
(directly or by operation of law) shall have assumed
all duties and obligations of the Company under this
Agreement pursuant to Section 11 hereof;
(E) The Company shall relocate its principal executive
offices, or require the Executive to have his
principal location of work changed to any location
which is in excess of 25 miles from the location
thereof immediately prior to the Change of Control or
to travel away from his office in the course of
discharging his responsibilities or duties hereunder
significantly more (in terms of either consecutive
days or aggregate days in any consecutive days or
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aggregate days in any calendar year) than was
required of him prior to the Change of Control
without, in either case, his prior consent; or
(F) Any material breach of this Agreement by the Company
or any successor thereto.
(c) A termination by the Company pursuant to Section 4(a) hereof or by
the Executive pursuant to Section 4(b) hereof shall not affect any rights which
the Executive may have pursuant to any agreement policy, plan, program or
arrangement of the Company providing Employee Benefits, which rights shall be
governed by the terms thereof. If this Agreement or the employment of the
Executive is terminated under circumstances in which the Executive is not
entitled to any payments under Sections 3 or 5 hereof, the Executive shall, have
no further obligation or liability to the Company hereunder with respect to his
prior or to any future employment by the Company.
5. Contract Payment:
(a) If, following the occurrence of a Change in Control, the Company
shall terminate the Executive's employment during the Period of Employment other
than pursuant to Section 4(a) hereof or if the Executive shall terminate his
employment pursuant to Section 4(b) hereof, the Company shall pay to the
Executive the amount specified in Section 5(a)(i) hereof within five business
days after the date (the "Termination Date") that the Executive's employment is
terminated (the effective date of which shall be the date of termination, or
such other date that may be specified by the Executive if the termination is
pursuant to Section 4(b) hereof):
(i) In lieu of any farther payments to the Executive for periods
subsequent to the Termination Date, but without affecting the
rights of the Executive referred to in Section 5(b) hereof, a
lump sum payment (the "Contract Payment") in an amount equal
to the present value (using a discount rate required to be
utilized for purposes of computations under Section 280G of
the Code or any successor provision thereto, or if no such
rate is so required to be used, a rate equal to the
then-applicable interest rate prescribed by the Pension
Benefit Guarantee Corporation for benefit valuations in
connection with non-multiemployer pension plan terminations
assuming the immediate commencement of benefit payments (the
"Discount Rate")) of the sum of (A) the aggregate Base Pay (at
the highest rate in effect for any year prior to the
Termination Date) for each remaining year or fraction of the
Period of Employment which the Executive would have received
had such termination or breach not occurred, plus (B) the
aggregate Incentive Pay (based upon the greatest amount of
Incentive Pay paid or payable to the Executive for any year
prior to the Termination Date), which the Executive would have
received pursuant to this Agreement during the remainder of
the Period of Employment had his employment continued for the
remainder of the Period of Employment; provided, however, that
in no event will the "present value" (as determined under
Section 280G of the Code or any successor provision thereto)
of the amount otherwise payable hereunder, when added to the
"present value" (as determined under Section 280G of the Code
or any successor provision thereto) of any other "parachute
payments" (as that term is defined in Section 280G of the Code
or. any successor provision thereto) from the Company, exceed
an amount (the "299% Amount") equal to 299% of the Executive's
"base amount" (as that term is defined in Section 280G of the
Code (without regard to Section 280G(b)(2)(A)(ii) thereof) or
any successor provision thereto) and if the amount otherwise
payable hereunder would exceed the 299% Amount, the Contract
Payment shall be reduced to the extent necessary so that the
aggregate present value
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determined in the previous clause does not exceed the 299%
Amount.
(ii) The determination of whether payments pursuant to this
Agreement constitute "parachute payments" (as that term is
defined in Section 280G of the Code or any successor
provisions thereto), and the determination of whether any
amount otherwise payable under Section 5(a)(i) causes the 299%
Amount to be exceeded (an "Excess Parachute Payment") shall be
made, if requested by the Executive or the Company, by tax
counsel selected by the Company, provided that the Executive
consents to the selection of such tax counsel which consent
shall not be unreasonably withheld. Upon the selection of such
tax counsel as provided herein, the opinion of such tax
counsel shall be binding upon the Company and the Executive.
The fact that the Executive shall have his right to the
Contract Payment reduced as a result of the existence of the
limitations contained in this Section 5(a) shall not limit or
otherwise affect any rights of the Executive to any Employee
Benefit, or other right arising other than pursuant to this
Agreement.
(iii) Except to the extent that the payments or benefits pursuant to
this Section 5(a)(iii) would result in a reduction of the
amount of the Contract Payment because they would cause the
299% Amount to be exceeded, (A) for the remainder of the
Period of Employment the Company shall arrange to provide the
Executive with Employee Benefits substantially similar to
those which the Executive was receiving or entitled to receive
immediately prior to the Termination Date (and if and to the
extent that such benefits shall not or cannot be paid or
provided under any policy, plan, program or arrangement of the
Company solely due to the fact that the Executive is no longer
an officer or employee of the Company, then the Company shall
itself pay or provide for the payment to the Executive, his
dependents and beneficiaries, such Employee Benefits) and (B)
without limiting the generality of the foregoing, the
remainder of the Period of Employment shall be considered
service with the Company for the purpose of service credits
under the Company's retirement income, supplemental executive
retirement and other benefit plans of the Company applicable
to the Executive or his beneficiaries immediately prior to the
Termination Date. Without otherwise limiting the purposes or
effect of Section 6 hereof, Employee Benefits payable to the
Executive pursuant to this Section 5(a)(iii) by reason of any
"welfare benefit plan" of the Company (as the term "welfare
benefit plan" is defined in Section 3(l) of the Employee
Retirement Income Act of 1974, as amended) shall be reduced to
the extent comparable welfare benefits are actually received
by the Executive from another employer during such period
following the Executive's Termination Date until the
expiration of the Period of Employment.
(iv) Notwithstanding any provision of this Section 5(a) to the
contrary, in the event the benefits intended to be provided to
the Executive pursuant to Section 5(a)(iii) hereof are
required to be reduced in whole or in part because the value
of such Employee Benefits, when added to the amount of the
Contract Payment under Section 5(a)(i), would exceed the 299%
Amount, the Executive shall have the option to elect to
receive, in lieu of all or a portion of the Contract Payment
provided in Section 5(a)(i) hereof, one or more Employee
Benefits, provided, that (A) prior to the receipt of any
payment under Section 5(a)(i) hereof, the Executive gives the
Company notice of such election specifying the Employee
Benefit or Employee Benefits so elected to be received, and
(B) in no event shall the "aggregate present value of the
payments in the
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nature of compensation" (as that phrase is used in Section
280G of the Code) received by the Executive as a result of the
receipt of such Employee Benefits, when added to the remaining
portion of the Contract Payment, if any, to be received by the
Executive, exceed the 299% Amount.
(b) Upon written notice given by the Executive to the Company prior to
the receipt of any payment pursuant to Section 5(a) hereof, the Executive, at
his sole option, without reduction to reflect the present value of such amounts
as aforesaid, may elect to have all or any of the Contract Payment payable
pursuant to Section 5(a)(i) hereof paid to him on a quarterly or monthly basis
during the remainder of the Period of Employment
(c) Except as otherwise specifically provided herein, there shall be no
right of set-off or counterclaim in respect of any claim, debt or obligation
against any payment to or benefit for the Executive provided for in this
Agreement.
(d) Without limiting the rights of the Executive at law or in equity,
if the Company fails to make any payment required to be made hereunder on a
timely basis, the Company shall pay interest on the amount thereof at an
annualized rate of interest equal to the then-applicable Discount Rate.
6. No Mitigation Obligation. The Company hereby acknowledges that it
will be difficult, and may be impossible, for the Executive to find reasonably
comparable employment following the Termination Date and that the noncompetition
covenant contained in Section 7 hereof will further limit the employment
opportunities for the Executive. In addition, the Company acknowledges that its
severance pay plans applicable in general to its salaried employees do not
provide for mitigation, offset or reduction of any severance payment received
thereunder. Accordingly, the parties hereto expressly agree that the payment of
the severance compensation by the Company to the Executive in accordance with
the terms of this Agreement will be liquidated damages, and that the Executive
shall not be required to mitigate the amount of any payment provided for in this
Agreement by seeking other employment or otherwise, nor shall any profits,
income, earnings or other benefits from any source whatsoever create any
mitigation, offset, reduction or any other obligation on the part of the
Executive hereunder or otherwise, except as expressly provided in Section
5(a)(iii) hereof.
7. Competitive Activity: During a period following the later of the
expiration of the Period of Employment or the period ending one year after the
Termination date, if the Executive shall have received or shall be receiving
benefits under Section 5(a) hereof, the Executive shall not, without the prior
consent of the Company, engage in any Competitive Activity (as defined below).
For purposes of this Agreement, the term "Competitive Activity" means the
Participant's employment or the Participant's engagement, directly or
indirectly, whether as an officer, employee, agent, consultant, partner,
financier, or otherwise, in any business activity in competition with any
business activity of the Company or its affiliates or subsidiaries in any
geographic area in which the Participant provided or attempted to provide any
products or services for the Company. "Competitive Activity" shall not include
the mere ownership of not more than 2% of the securities in any such
publicly-traded enterprise. If requested by the Participant, the Compensation
Committee shall inform the Participant whether any prospective employment or
engagement shall constitute "Competitive Activity."
8. Legal Fees and Expenses:
(a) It is the intent of the Company that the Executive not be required
to incur the expenses associated with the enforcement of his rights under this
Agreement by litigation or other legal action
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because the cost and expense thereof would substantially detract from the
benefits intended to be extended to the Executive hereunder. Accordingly, if it
should appear to the Executive that the Company has failed to comply with any of
its obligations under this Agreement or in the event that the Company or any
other person takes any action to declare this Agreement void or unenforceable,
or institutes any litigation designed to deny, or to recover from, the Executive
the benefits intended to be provided to the Executive hereunder, the Company
irrevocably authorizes the Executive from time to time to retain counsel of his
choice, at the expense of the Company as hereafter provided, to represent the
Executive in connection with the initiation or defense of any litigation or
other legal action, whether by or against the Executive, the Company or any
Director, officer, stockholder or other person affiliated with the Company, in
any jurisdiction. Notwithstanding any existing or prior attorney-client
relationship between the Company and such counsel, the Company irrevocably
consents to the Executive's entering into an attorney-client relationship with
such counsel, and in that connection the Company and the Executive agree that a
confidential relationship shall exist between the Executive and such counsel.
The Company shall pay or cause to be paid and shall be solely responsible for
any and all attorneys' and related fees and expenses incurred by the Executive
as a result of the Company's failure to perform this Agreement or any provision
thereof or as a result of the Company or any person contesting the validity or
enforceability of this Agreement or any provision thereof as aforesaid.
(b) In order to ensure the benefits intended to be provided to the
Executive under Section g(a) hereof the Company hereby agrees, upon the
occurrence of a Change in Control, to establish an irrevocable standby letter of
credit, substantially in the form attached hereto as Exhibit A and incorporated
herein by reference (the "Letter of Credit"), to be issued by a national banking
association with a capital and surplus of not less than $1 00,000,000 (the
"Bank") for the benefit of the Executive and certain other of the officers of
the Company and providing that the fees and expenses of counsel selected from
time to time by the Executive pursuant to this Section 8 shall be paid, or
reimbursed to the Executive if paid by the Executive, on a regular, periodic
basis upon presentation by the Executive to the Bank of a statement or
statements prepared by such counsel in accordance with its customary practices.
The Company shall pay all amounts and take all action necessary to maintain the
Letter of Credit during the Period of Employment and for two years thereafter
and if, notwithstanding the Company's complete discharge of such obligations,
such Letter of Credit shall be terminated or not renewed, the Company shall
obtain a replacement irrevocable clean letter of credit drawn upon a commercial
bank selected by the Company and acceptable to the Executive, upon substantially
the same terms and conditions as contained in the Letter of Credit or any
similar arrangement acceptable to the Executive which, in any case, assures the
Executives of the benefits of this Agreement without incurring any cost or
expense for enforcement against the Company or the defense thereof.
9. Employment Rights: Nothing expressed or implied in this Agreement
shall create any right or duty on the part of the Company or the Executive to
have the Executive remain in the employment of the Company prior to any Change
in Control, provided, however, that any termination of employment of the
Executive or removal of the Executive as an elected officer of the Company or
termination of this Agreement following the commencement of any discussion with
a third person that ultimately results in a Change in Control shall be deemed to
be a termination or removal of the Executive after a Change in Control for
purposes of this Agreement.
10. Withholding of Taxes: The Company may withhold from any amounts
payable under this Agreement all federal, state, city or other taxes as shall be
required pursuant to any law or government regulation or ruling.
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11. Successors and Binding Agreement:
(a) The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation, reorganization or otherwise) to
all or substantially all of the business and/or assets of the Company, by
agreement in form and substance satisfactory to the Executive, expressly to
assume and agree to perform this Agreement in the same manner and to the same
extent the Company would be required to perform if no such succession had taken
place. This Agreement shall be binding upon and inure to the benefit of the
Company and any successor to the Company, including, without limitation any
persons acquiring directly or indirectly all or substantially all of the
business and/or assets of the Company whether by purchase, merger,
consolidation, reorganization or otherwise (and such successor shall thereafter
be deemed the "Company" for the purposes of this Agreement), but shall not
otherwise be assignable, transferable or delegable by the Company.
(b) This Agreement shall inure to the benefit of and be enforceable by
the Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees and/or legatees.
(c) This Agreement is personal in nature and neither of the parties
hereto shall, without the consent of the other, assign, transfer or delegate
this Agreement or any rights or obligations hereunder except as expressly
provided in Section 11I (a) hereof. Without limiting the generality of the
foregoing, the Executive's right to receive payments hereunder shall not be
assignable, transferable or delegable, whether by pledge, creation of a security
interest or otherwise, other than by a transfer by his will or by the laws of
descent and distribution and, in the event of any attempted assignment or
transfer contrary to this Section 11 (c), the Company shall have no liability to
pay any amount so attempted to be assigned, transferred or delegated.
(d) The Company and the Executive recognize that each party will have
no adequate remedy at law for breach by the other of any of the agreements
contained herein and, in the event of any such xxxxxx, the Company and the
Executive hereby agree and consent that the other shall be entitled to a decree
of specific performance, mandamus or other appropriate remedy to enforce
performance of this Agreement.
12. Notice: For all purposes of this Agreement, all communications
including, without limitation notices, consents, requests or approvals, provided
for herein shall be in writing and shall be deemed to have been duly given when
delivered or five business days after having been mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed to the Company (to the attention of the Secretary of the Company) at
its principal executive office and to the Executive at his principal residence,
or to such other address as any party may have furnished to the other in writing
and in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
13. Governing Law: The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Delaware, without giving effect to the principles of conflict of laws of such
State.
14. Validity. If any provision of this Agreement or the application of
any provision hereof to any person or circumstances is held invalid,
unenforceable or otherwise illegal, the remainder of this Agreement and the
application of such provision to any other person or circumstances shall not be
affected, and the provision so held to be invalid, unenforceable or otherwise
illegal shall be
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reformed to the extent (and only to the extent) necessary to make it
enforceable, valid and legal.
15. Miscellaneous: No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Executive and the Company. No waiver by either party
hereto at any time of any breach by the other party hereto or compliance with
any condition or provision of this 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. No agreements or representations,
oral or otherwise, expressed or implied with respect to the subject matter
hereof have been made by either party which are not set forth expressly in this
Agreement.
16. Counterparts: This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same agreement.
17. Prior Agreements: This Agreement supersedes in its entirety any
prior agreement between the Executive and the Company, its affiliates or their
predecessors or successors relating to the subject matter contained herein.
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IN WITNESS OF, the parties have caused this Agreement to be duly
executed and delivered as of the date first above written.
OHM CORPORATION
By: _____________________________________
Xxxxx X. Xxxx, Chairman of the Board,
President and Chief Executive Officer
_____________________________________
Executive
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IRREVOCABLE LETTER OF CREDIT
Total Credit Not to Exceed $1,200,000
To: The Beneficiaries Named on Annex A Hereto
Gentlemen and Ladies:
At the request of OHM Corporation, 00000 X.X. Xxxxx 000 Xxxx, Xxxxxxx, Xxxx
00000, we hereby authorize each of you to draw on us up to an aggregate amount
of One Hundred Fifty Thousand and 00/100 Dollars ($150,000.00) each, payable
upon presentation at this office of your draft or drafts at sight from time to
time, accompanied by a written statement signed by you to the effect that such
draft represents an amount equal to the fees and expenses of your counsel
selected by you which are pursuant to the provisions of a certain Employment
Agreement with said Corporation dated as of January 1, 1996 and certifying that
the fees and expenses of such counsel, a copy of which shall be attached, were
incurred pursuant to the terms of such letter agreement. Each draft shall be
marked: "Drawn under Mellon Bank, N.A., Letter of Credit No. ________________ ."
This letter of credit shall be valid for a period of five (5) years from the
date hereof. The aggregate amount which each Beneficiary may draw under this
Letter of Credit is subject to increase, so long as the aggregate amount of the
total credit available to all Beneficiaries does not exceed $1,200,000. Each
draft for an amount in excess of $150,000.00 aggregate for any one Beneficiary
shall be accompanied by a copy of a writing approving such increase, signed by
any two officers of OHM Corporation.
Very truly yours,
Dated:____________________ ____________________________
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ANNEX A
TO
IRREVOCABLE LETTER OF CREDIT
Xxxxxx X. X. Xxxxx
Xxxxxx X. Xxxxxxxxx
Xxxx X. Xxxxxx
Xxxxx X. Xxxx
Xxxxxx X. Xxxx
Xxxxxx X. Xxxxxxxxxx
Xxxxxx X. Xxxxxxxxxxx
Xxxxxxx X. Xxxxxxxxx
Xxxx X. Xxx III
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AMENDMENT NO. 1
TO EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into as of the ____ day of _________, 1998
between the OHM Corporation (the "Company") and ____________ (the "Executive").
WITNESSETH:
WHEREAS, the Company and the Executive have entered into an
employment agreement dated as of _____________ (the "Employment Agreement"); and
WHEREAS, the Employment Agreement may be amended by the
written consent of the Company and the Executive; and
WHEREAS, the Company and the Executive wish to amend the
Employment Agreement in order to clarify certain rights and obligations of the
parties thereunder.
NOW THEREFORE, in consideration of the mutual covenants
contained herein, the Employment Agreement is hereby amended in the manner set
forth below.
1. Effective as of the date hereof, Section 5(a) of the Employment
Agreement is hereby amended by the addition of the following paragraph at the
end thereof:
(v) As a result of the uncertainty in the application of Sections 280G
and 4999 of the Code, it is possible that Contract Payments will be
made to Executive by the Company that will constitute "excess parachute
payments." If it is established pursuant to a final determination of a
court or an Internal Revenue Service proceeding which has been finally
and conclusively resolved, that Contract Payments have been made to, or
provided for the benefit of, Executive by the Company which are in
excess of the limitations set forth in this Section 5(a) (an "Excess
Payment"), such Excess Payment shall be deemed for all purposes to be a
loan to Executive made on the date Executive received the Excess
Payment, and Executive shall repay the Excess Payment at the applicable
federal rate (as defined in Section 1274(d) of the Code from the date
of Executive's receipt of such Excess Payment until the date of such
repayment.
2. In all other respects, the Employment Agreement shall remain in full
force and effect.
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IN WITNESS WHEREOF, the parties to the Employment Agreement have
executed this Agreement as of the day and year first written above.
OHM Corporation
By:____________________________
_______________________________
(Name of Executive)
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AMENDMENT NO. 2
TO EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into as of the ________ day of February, 1998
between the OHM Corporation (the "Company") and ___________________________ (the
"Executive").
W I T N E S S E T H:
WHEREAS, the Company and the Executive have entered into an employment
agreement dated as of _________________ (the "Employment Agreement"); and
WHEREAS, the Company and the Executive entered into an Amendment No. 1
to the Employment Agreement dated as of _______ February, 1998;
WHEREAS, the Employment Agreement may be amended by the written consent
of the Company and the Executive; and
WHEREAS, the Company and the Executive wish to amend further the
Employment Agreement in order to clarify certain rights and obligations of the
parties thereunder.
NOW THEREFORE, in consideration of the mutual covenants contained
herein, the Employment Agreement is hereby amended in the manner set forth
below.
1. Effective as of the date hereof, Section 5(a)(v) of the Employment Agreement
is hereby amended in its entirety to read as follows:
(v) The parties intend that payments otherwise payable to Executive pursuant to
this Section 5 shall be reduced so that no portion of any such payment shall be
an "excess parachute payment" within the meaning of Section 280G(b)(1) of the
Code. As a result of the uncertainty in the application of Sections 280G and
4999 of the Code, it is possible that contract Payments will be made to
Executive by the company that will be found to constitute "excess parachute
payments." If it is established pursuant to a final determination of a court or
an Internal Revenue Service proceeding which has been finally and conclusively
resolved, that Contract Payments have been made to, or provided for the benefit
of, Executive by the company which are in excess of the limitations set forth in
this Section 5 (a) the, to the extent of the smallest amount (an "Excess
Payment") that will cause Executive to have received no excess parachute
payment, such Excess Payment shall be deemed for all purposes to be a loan to
Executive made on the date Executive received the Excess Payment, and Executive
shall repay the Excess Payment to the Company on demand, together with interest
on the Excess Payment at the applicable federal rate (as defined in Section
1274(d) of the Code) from the date of Executive's receipt of such Excess Payment
until the date of such repayment.
2. In all other respects, the Employment Agreement shall remain in full force
and effect.
IN WITNESS WHEREOF, the parties to the Employment Agreement have
executed this
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Agreement as of the day and year first written above.
OHM CORPORATION
By:_________________________________________
Xxxxxx X. Xxxxxxx, Vice President, Legal
____________________________________________
(Name of Executive)
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