AMENDMENT TO CHANGE OF CONTROL AGREEMENT (Tier 2 Employees)
Exhibit
10.78
AMENDMENT TO CHANGE OF
CONTROL AGREEMENT
(Tier 2
Employees)
THIS AMENDMENT to the Change
of Control Agreement, dated as of February 5, 2007 (the “Agreement”) is made as
of this 31st day of December, 2008 by and between American Ecology Corporation,
a Delaware corporation (the “Company”) and Xxxx X. Xxxxxx (the
“Employee”).
WHEREAS, the Company and the
Employee desire to amend the Agreement to comply with the final regulations
issued under Section 409A of the Internal Revenue Code of 1986, as amended (the
“Code”); and
WHEREAS, capitalized terms not
otherwise defined herein shall have the meanings ascribed to them by the
Agreement.
NOW, THEREFORE, the Company
and the Employee, intending to be legally bound, hereby amend the Agreement as
follows, effective as of December 31, 2008:
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1.
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Section
1.1 of the Agreement is hereby amended and restated in its entirety to
read as follows:
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“1.1 Effect of
Agreement. This Agreement shall commence on the Effective date
and shall remain in full force and effect so long as Employee is employed by
Company; provided, however, that upon the Employee’s termination of employment
pursuant to Section 3.1(ii) hereof this Agreement shall renew for a period
beginning on the date of such Termination Event and expiring upon the effective
date of the Change of Control; and, provided, further, that the expiration of
this Agreement shall not affect Employee’s right to any payment to which
Employee is entitled hereunder.
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2.
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Section
3.1 hereby amended and restated in its entirety to read as
follows:
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“3.1 Involuntary
Termination Upon or Following Change of Control. In the event
Employee’s employment with the Company or one of its subsidiaries is
involuntarily terminated at any time by the Company without Cause either (i) at
the time of or within twelve (12) months
following the occurrence of a Change of Control, or [(ii) at any time prior to a
Change of Control, if such termination is at the request of an Acquiror (as
defined below),] then such termination of employment will be a Termination Event
and the Company shall pay Employee the compensation and benefits described in
Article
4. An ‘Acquiror’ is either a person
or a member of a group of related persons representing such group that in either
case obtains effective control of the Company in a transaction or a group of
related transactions constituting the Change of Control.”
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3.
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Section
3.3 is hereby amended and restated in its entirety to read as
follows:
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“3.3 Voluntary
Termination. Employee may voluntarily terminate his or her
employment with the Company and/or its subsidiaries at any time. In
the event (i) Employee voluntarily terminates his or her employment for any
reason, or (ii) Employee’s employment terminates on account of either death of
physical or mental disability, then such termination of employment will not
be a Termination Event, Employee will not
be entitled to receive any payments or benefits under the provisions of this
Agreement, and the Company will cease paying compensation or providing benefits
to Employee as of the Employee’s termination date; provided, however, that
pursuant to Company policy, the Employee’s health benefits shall extend to the
last day of the calendar month in which employment termination occurs; and provided, further, that the
Company shall pay Employee (or his or her estate or personal representative, in
the event of Employee’s death) the Accrued Obligations in a single, lump-sum
payment within forty-five (45) days following the date of such employment
termination.”
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4.
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Section
4.2 is hereby amended and restated in its entirety to read as
follows:
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“4.2 MIP
Bonus; Accrued Obligations. Upon the occurrence of a
Termination Event, Employee shall receive payment of (i) the Accrued Obligations
and (ii) his or her pro rata portion (based on the number of calendar months or
portion thereof elapsed during the year as of the Termination Event) of that
year’s target/base bonus amount under the Company’s Management Incentive Bonus
Plan (the ‘MIP’),
accrued as of the date of the Termination Event, if any, less any applicable
withholding of federal, state or local taxes. Such MIP bonus, if any,
and Accrued Obligations shall be paid in a single, lump-sum payment within
forty-five (45) days following the date of the Termination Event, subject to the
limitations set forth in Section 4.6, if applicable.”
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5. Section
4.3 is hereby amended and restated in its entirety to read as
follows:
“4.3 Health
Insurance Coverage. Following the occurrence of a Termination
Event, Employee shall be entitled, at the Company’s expense, to continue to
receive the health insurance coverage to which Employee and his or her
dependents were entitled as of the date of the Termination Event and for a
period of twelve
(12) months thereafter; provided, however, that such
coverage may be structured, in the Company’s sole discretion, as a reimbursement
to Employee for the Employee’s expenses (except for the portion of such expenses
that would otherwise have been due from Employee had Employee continued in
active employment with the Company) incurred for continuation coverage under the
Company’s health plan pursuant to Section 4980B of the Internal Revenue Code of
1986, as amended (the ‘Code’).”
6. Section
4.6 is hereby amended and restated in its entirety to read as
follows:
“4.6 Compliance
with Section 409A. Any amounts 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 such 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
permitted 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 paragraph shall be paid to Employee or his or her beneficiary in
one lump sum, including all accrued interest.”
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7.
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Section
7.1(e) is hereby amended and restated in its entirety to read as
follows:
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“(e) ‘Change of
Control’ means the occurrence of any of the following
events:
(i) the
consummation of a merger or consolidation of the Company with or into another
entity or any other corporate reorganization, if more than 50% of the combined
voting power of the continuing or surviving entity's securities outstanding
immediately after such merger, consolidation or other reorganization is owned by
persons who were not stockholders of the Company immediately prior to such
merger, consolidation or other reorganization; provided, however, that a
public offering of the Company's securities shall not constitute a corporate
reorganization;
(ii) the
sale, transfer, or other disposition of all or substantially all of the
Company's assets; or
(iii) any
transaction as a result of which any person is the ‘beneficial owner’ (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing more than 50% of the total voting power
represented by the Company's then outstanding voting securities. For purposes of
this paragraph 4.d, 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.”
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8. Except
as expressly amended hereby, the Agreement shall remain unmodified and in full
force and effect.
IN
WITNESS WHEREOF, the parties have executed this Amendment as of the day and year
first above written.
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AMERICAN
ECOLOGY CORPORATION
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By: /s/
Xxxxxxx X. Xxxxxx
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Printed
Name: Xxxxxxx X. Xxxxxx
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Title: Vice
President and CFO
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EMPLOYEE
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/s/
Xxxx X. Xxxxxx
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