EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit
10.71
This EXECUTIVE EMPLOYMENT AGREEMENT
(this “Employment
Agreement”) is made and entered into as of the 10 day of December, 2008,
by and between American Ecology Corporation, a Delaware corporation (the “Company”),
and Xxxxx X. Xxxxxxxxxxx (“Employee”). The
Company and Employee are sometimes collectively referred to herein as the “Parties,”
and individually, as a “Party.”
Whereas,
the Company desires to employ the Employee pursuant to the terms and conditions
of this Agreement, and the Employee desires to accept such 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. Employment.
1.1 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. Employee’s first day of employment with the
Company shall be January 5, 2009 (the “Commencement
Date”).
1.2 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 Commencement Date set forth above in
Section 1.1
(Employment) and ending
May 31, 2010 (the “Term”), or
such earlier date that Employee’s employment is terminated in accordance with
the provisions of this Employment Agreement.
1.3 Capacity
and Duties. Employee is and
shall be employed in the capacity of President and Chief Operating Officer of
the Company and its subsidiaries 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”)
and/or the Board of Directors of the Company (the “Board”),
which are not materially inconsistent with Employee's positions 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. Employee’s duties shall
include, but shall not be limited to, the management of (i) operating and closed
facilities for safety, compliance and efficiency, (ii) operating facility
permitting to maintain adequate future capacity, (iii) sales and marketing
functions to maximize revenue, and (iv) capital projects within time and budget
parameters. In addition, Employee shall support the CEO on merger,
acquisition and other corporate development activities and shall execute the
Company’s on-going strategy and financial plan as an executive team
member. Employee shall report to the CEO.
1.4 Place of
Employment. Employee’s
principal place of work shall be the main corporate office of the Company,
currently located in Boise, Idaho; provided, however, that the
location of the Company and any of its offices may be moved from time to time in
the discretion of the Board.
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1.5 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.
1.6 Adherence
to Standards. Employee shall
comply with the written policies, standards, rules and regulations of the
Company from time to time established for all executive officers of the Company
consistent with Employee’s position and level of authority.
1.7 Review of
Performance. The CEO shall periodically
review and evaluate with Employee his performance under this Employment
Agreement.
2. Compensation. During the 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:
2.1 Base
Salary. During the Term,
the Company shall pay to employee an annual base salary (“Base
Salary”) in an amount not less than Two Hundred Fifty Thousand and No/100
Dollars ($250,000.00). Such Base Salary shall be payable in
accordance with the regular payroll practices and procedures of the
Company.
2.2 Bonus. Employee shall be
eligible to participate in any cash bonus plans of the Company which are in
effect from time to time, including the annual cash bonus opportunity granted to
Employee under the Company’s Management Incentive Program (“MIP”),
subject to the terms and conditions thereof, at a 40% of salary target
basis. Anything to the contrary in this Agreement notwithstanding,
the Company reserves the right to modify or eliminate any or all of its cash
bonus plans at any time. In the event of any consistency between the
terms of this Employment Agreement and the terms of the MIP, the MIP shall
govern and control.
2.3 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 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.
2.4 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).
2.5 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. Termination
of Employment.
3.1 Termination
of Employment. Employee’s
employment and this Employment Agreement may be terminated prior to expiration
of the Term as follows (with the date of termination of Employee’s employment
hereunder being referred to hereinafter as the “Termination
Date”):
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A. Without Cause. Upon
no less than thirty (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.
B. With Cause. By the
Company for Cause immediately upon written notice stating the basis for such
termination.
C. Death or
Disability. Due to the death or Disability (as hereinafter
defined) of Employee.
D. By Employee. By
Employee at any time with or without Good Reason (as hereinafter defined) upon
thirty (30) days’ written notice from Employee to the Company (or such shorter
period to which the Company may agree).
E. Mutual
Agreement. Upon the mutual agreement of the Company and
Employee.
3.2 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 (including any
directorship) 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.
4. Payments
Upon Termination of Employment.
4.1 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 (as
hereinafter defined) or by Employee without Good Reason,
the Company shall pay Employee the Accrued Obligations (as hereinafter defined)
(other than, however,
any cash bonus payment which shall be forfeited), in a single, lump-sum payment
within forty-five (45) days following such termination.
4.2 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 forty-five (45) days following such termination. In addition,
Employee shall be entitled to receive the following: (i) an amount
equal to the greater of $20,800 for each month Employee served as President and
Chief Operating Officer under this Agreement or one year’s Base Salary (“Severance
Payment”), which shall be payable in accordance with the regular payroll
practices and procedures of the Company; and (ii) continued medical,
hospitalization, life insurance and disability benefits to which he 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 twelve (12) months following the
Termination Date (or until Employee receives similar or comparable coverage from
a new employer). All such additional payments and benefits under this
Section 4.2
shall be conditional on Employee’s continued compliance with Section 9 (Return of Property), Section 12 (Confidentiality), Section 13 (Work Product Assignment), and
Section 14
(Covenant Not to
Compete).
4.3 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 forty-five (45) days following such
termination.
4.4 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 forty-five (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 executives of
the Company.
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4.5 Retirement. If Employee’s
employment and this Employment Agreement are terminated by virtue of Employee’s
Retirement, the Company shall pay Employee the Accrued Obligations in a single,
lump-sum payment within forty-five (45) days following such
termination.
5. Payment
Upon Change of Control. Upon a Change of
Control of the Company (as hereinafter defined), Employee shall receive a
payment as set forth on Exhibit B attached
hereto (the “Change of Control
Payment”). Such Change of Control Payment shall be paid
in a single lump-sum payment, within forty-five (45) days following the date of
the Change of Control. The Change of Control Payment shall be in lieu
of any Severance Payment that might otherwise be due and payable to
Employee.
6. Payment
Upon Expiration of Employment Agreement. In the event this
Employment Agreement expires at the end of the Term, without the Company and
Employee entering into a new, mutually agreed upon employment contract effective
as of June 1, 2010, Employee shall be entitled to receive (i) the Accrued
Obligations, and (ii) a payment equal to $20,800 for each month Employee served
as President and Chief Operating Officer under this Employment
Agreement. Any payment under this Section 6 shall be
paid in a single lump-sum payment within forty-five (45) days following the date
of the expiration of the Term of this Employment
Agreement. Additionally, in such event the terms and conditions of
Section 14.2
(Non-Competition
Covenant) shall be void and of no effect.
7. Compliance
With Section 409A. Any amount
payable as a result of Employee’s termination of employment shall only be
payable if such termination of employment constitutes a “separation from
service” within the meaning of Section 409A of the Code. In addition,
in the event that (i) Employee is deemed at the time of his separation from
service to be a “specified employee” under Section 409A(a)(2)(B)(i) of the Code,
and (ii) the payment of any amounts to Employee as a result of such separation
from service (an “Agreement
Payment”) would result in penalty tax liability pursuant to Section 409A
of the Code, then such Agreement Payment shall not be made or commence until the
earlier of (a) the expiration of the six (6)-month period measured from the date
of Employee’s separation from service with the Company or (b) such earlier time
as may be permitted without the imposition of penalty taxes on Employee under
Section 409A of the Code and the regulations or other authority promulgated
thereunder. During any period in which an Agreement Payment to
Employee is deferred pursuant to the foregoing, Employee shall be entitled to
interest on the deferred Agreement Payment at a per annum rate equal to the
highest rate of interest applicable to six (6)-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. Upon the expiration of the applicable
deferral period, any Agreement Payment which would have otherwise been made
during that period (whether in a single sum or in installments) in the absence
of this Section
7 shall be paid to Employee or his beneficiary in one lump sum, including
all accrued interest.
8. 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 8, 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:
8.1 Accrued
Obligations. The term “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 cash bonus 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.
8.2 For Cause
Termination. 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:
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A. 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;
B. Has
engaged in willful conduct the consequences of which are materially adverse to
the Company, monetarily or otherwise;
C. 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
D. Has
been convicted of (or has plead guilty or no contest to) any felony other than a
traffic violation.
8.3 Change of
Control. A “Change of
Control” shall be deemed to have occurred upon:
A. The
consummation of a merger or consolidation of the Company with or into another
entity or any other corporate reorganization, if more than fifty percent (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;
B. The
sale, transfer, or other disposition of all or substantially all of the
Company’s assets; or
C. 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 fifty percent (50%) of the
total voting power represented by the Company’s then outstanding voting
securities. For purposes of this Section 8.3.C, 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.
8.4 Disability. The term “Disability”
shall be as defined in the Company’s Long-Term Disability Plan.
8.5 Good
Reason. 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 ten (10) days after written notice thereof from Employee to the
Board:
A. Any
material diminution or adverse change in Employee’s position, status, title,
authorities or responsibilities, office or duties under this Employment
Agreement which represents a demotion from such position, status, title,
authorities or responsibilities, office or duties which are materially
inconsistent with his position, status, title, authorities or responsibilities,
office or duties set forth in this Employment Agreement, or any removal of
Employee from, or failure to appoint, elect, reappoint or reelect Employee to,
any of his positions, except in connection with the termination of his
employment with or without Cause, or as a result of his death or Disability;
provided, however, that
no change in position, status, title, authorities or responsibilities, office or
duties customarily attributable solely to the Company ceasing to be a
publicly-traded corporation shall constitute Good Reason hereunder;
B. The
exclusion of Employee in any incentive, bonus or other compensation plan in
which Employee participated at the time that this Employment Agreement is
executed, unless an equitable arrangement (embodied in an ongoing substitute or
alternative plan) has been made with respect to the failure to continue such
plan, or the failure by the Company to continue Employee’s participation
therein, or any action by the Company which would directly or indirectly
materially reduce his participation therein or reward opportunities thereunder;
provided, however, that
Employee continues to meet all eligibility requirements thereof. Notwithstanding
the foregoing, this provision shall not apply to the exclusion of Employee in
any incentive, bonus or other compensation plan in which Employee participated
at the time that this Employment Agreement is executed to the extent that such
termination is required by law;
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C. Any
amendment, modification or termination of the Company’s Management Incentive
Plan which materially and adversely affects Employee's rights
thereunder;
D. The
failure by the Company to continue in effect any employee benefit plan
(including any medical, hospitalization, life insurance or disability benefit
plan in which Employee participates), or any material fringe benefit or
prerequisite enjoyed by him unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been made with respect to the
failure to continue such plan, or the failure by the Company to continue
Employee's participation therein, or any action by the Company which would
directly or indirectly materially reduce his participation therein or reward
opportunities thereunder, or the failure by the Company to provide him with the
benefits to which he is entitled under this Employment Agreement; provided, however, that
Employee continues to meet all eligibility requirements
thereof. Notwithstanding the foregoing, this provision shall not
apply to the exclusion of Employee in any employee benefit plan in which
Employee participated at the time that this Employment Agreement is executed to
the extent that such termination is required by law, or to such failure to
continue any employee benefit plan or fringe benefit, or Employee’s
participation therein or reward opportunity thereunder if such failure to
continue such plan or benefit is applicable to the Company's executive officers
and/or employees generally; or
E. Any
material breach by the Company of any provision of this Employment
Agreement.
8.5 Retirement. The term “Retirement”
shall mean retirement upon “normal retirement age” as defined in the Company’s
401(k) retirement plan.
9. 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, Palm Pilots, pagers, Blackberrys 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 9 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.
10. 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
Executive 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: 0000
X. Xxxxxxxxx Xxxx, Xxxxx, Xxxxx 00000.
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11. 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 excellent physical and mental condition and is not under the influence
of alcohol, drugs or similar substance.
12. 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.
13. 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.
14. Covenant
Not to Compete.
14.1 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 14 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.
14.2 Non-Competition
Covenant. Subject to the
terms of Section
6 (Payment Upon
Expiration of Employment Agreement) above, which may act to preclude the
application of this Section 14.2, 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 two (2) years after such termination of employment,
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
14.2.
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14.3 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 one (1)
year thereafter (two (2) years thereafter if employment is terminated by the
Company for Cause or by
the Employee without
Good Reason), 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.
14.4 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 two (2) years 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.
15. Remedies.
15.1 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.
15.2 Remedy
for Breach of Restrictive Covenants. The provisions of
Section 12
(Confidentiality), Section 13 (Work Product Assignment), and
Section 14
(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 12 (Confidentiality) and Section 14 (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.
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15.3 Right to
Cancel Payments.
A. In
addition to the remedies set forth above in Sections 15.1 and
15.2, the Company may, at the sole discretion of the Board, cancel,
rescind, suspend, withhold or otherwise limit or restrict any MIP bonus payouts
granted to Employee or the Severance Payment under Section 4.2 (Termination by the Company
Without Cause or by the Employee
for Good Reason) (which excludes
any other payments made to Employee under Section 4 and under
Sections 5 and
6 above), whether vested or not, at any time if:
(i) Employee
is not in compliance with all of the provisions of Section 12 (Confidentiality), Section 13 (Work Product Assignment) and
Section 14
(Covenant Not to
Compete); and
(ii) Such
non-compliance has been finally determined by binding arbitration pursuant to
Section 23
(Dispute
Resolution).
B. As
a condition to the receipt of any such MIP bonus payout or 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 12 (Confidentiality), Section 13 (Work Product Assignment)
and/or Section
14 (Covenant Not to
Compete), as finally determined by binding arbitration pursuant to Section 23 (Dispute Resolution), prior to
or within twelve (12) months after any payment by the Company with respect to
any MIP bonus payout or the Severance Payment under Section 4.2, such
payment(s) may be rescinded by the Company within twelve (12) months
thereafter. In the event of such rescission, Employee shall pay to
the Company, within twelve (12) months of the Company’s rescission of a bonus or
severance payment, 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.
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.
16. 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.
17. 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.
9
18. Headings. Headings used in
this Employment Agreement are for convenience only and shall not be used to
interpret or construe its provisions.
19. 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 CEO. 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.
20. 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.
21. 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.
22. Governing
Law. This Employment
Agreement shall be construed and enforced pursuant to the laws of the State of
Idaho.
10
23. Dispute
Resolution. Except as
described above in Section 15.2 (Remedy for Breach of Restrictive
Covenants):
23.1 The
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 sixty (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.
23.2 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.
23.3 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.
23.4 The
arbitrator shall take such steps as may be necessary to hold a private hearing
within one hundred twenty (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 fourteen (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.
11
24. Attorneys’
Fees.
24.1 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), 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.
24.2 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.
25. Executive
Officer Status. Employee
acknowledges that he may be deemed to be an “executive officer” of the Company
for purposes of the Securities Act of 1993, 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, Pub.L. NO.
107-204.
26. 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.
27. Pronouns. All pronouns and
any variations thereof shall be deemed to refer to the masculine, feminine,
neuter, singular, or plural, as the identity of the person or entity may
require. As used in this agreement: (1) words of the masculine gender
shall mean and include corresponding neuter words or words of the feminine
gender, (2) words in the singular shall mean and include the plural and vice
versa, and (3) the word “may” gives sole discretion without any obligation to
take any action.
28. 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.
29. 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.
30. Employee
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 page intentionally
left blank]
[Signature Page
Follows]
12
IN WITNESS WHEREOF, this
Executive Employment Agreement has been duly executed by the Company and
Employee as of the date first above written.
EMPLOYEE:
/s/ Xxxxx X.
Xxxxxxxxxxx
Xxxxx
X. Xxxxxxxxxxx
COMPANY:
American
Ecology Corporation
By: /s/ Xxxxxxx X. Xxxxxx
Name:
Xxxxxxx X Xxxxxx
Title:
Chief Executive Officer
13
Exhibit
A
OTHER
BENEFITS
None
14
|
|
Exhibit
B
|
|
|
CHANGE
OF CONTROL PAYMENT
|
|
Enterprise
Value (1)
|
Change
of Control Payment (2)
|
|
**
|
**
|
|
**
|
**
|
|
**
|
**
|
|
**
|
**
|
|
**
|
**
|
|
(1)
|
Dollar
Amounts are in Millions. Enterprise value equal to potential
purchase price or market
capitalization.
|
|
(2)
|
Expressed
as a percentage of enterprise value. By way of illustration,
and not of limitation, (i) if the enterprise value represented in the
Change of Control transaction is **, the Change of Control Payment would
be equal to ** (** x ** = **); and (ii) if the enterprise value
represented in the Change of Control transaction is **, the Change of
Control payment would be equal to ** (** x ** =
**).
|
|
|
**
Certain information in this exhibit has been omitted and filed separately
with the Securities and Exchange Commission. Confidential
treatment has been requested with respect to the omitted
portions.
|
15
