EXHIBIT 10.73
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made effective as of the 1st
day of September, 1998 (the "Commencement Date"), by and between U S LIQUIDS
INC., a Delaware corporation (the "Corporation"), and Xxxx X. Van Rooyan (the
"Employee").
WITNESSETH:
WHEREAS, the Corporation desires to employ the Employee upon
the terms and conditions herein set forth; and
WHEREAS, the Employee desires to be so employed upon such
terms and conditions;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties agree as follows:
1. EMPLOYMENT. The Corporation shall employ the Employee,
and the Employee shall serve, as Vice President and General Counsel
of the Corporation on the terms set forth herein.
2. DUTIES AND RESPONSIBILITIES.
2.1 AS VICE PRESIDENT AND GENERAL COUNSEL. As Vice President and
General Counsel, the Employee shall have overall responsibility for management
of the Corporation's legal affairs. The Employee shall report directly to the
Chief Executive Officer of the Corporation and shall perform such duties as are
commensurate with his positions as Vice President and General Counsel. The
Employee's place of employment shall be in the Houston, Texas metropolitan area,
subject to travel necessary for the performance of his duties hereunder. The
Corporation shall provide to the Employee adequate office facilities and staff
commensurate with his positions to enable him to perform his duties hereunder.
2.2 EXTENT OF SERVICES. The Employee shall devote such of his
time as is necessary to fully and properly carry out his duties and
responsibilities. However, this Agreement shall not prohibit the Employee from
engaging in other activities, whether for family, recreation, investment, civic,
charity, or other purposes, so long as those activities do not unduly interfere
with the ability of the Employee to carry out his duties and responsibilities
hereunder and so long as they are not inconsistent or competitive with the
interests of the Corporation.
2.3 DUTY OF LOYALTY. The Employee recognizes that he owes a duty
of loyalty and good faith to the Corporation (including any subsidiary thereof)
and agrees that during the term of this
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Agreement he will not take advantage of any corporate opportunity of the
Corporation, engage in self-dealing with the Corporation, sell or disclose any
confidential or proprietary information of the Corporation, or have or obtain
any material economic interest in any entity or arrangement which is competitive
with the business of the Corporation or engage in any activities which are
competitive with the business of the Corporation, without first disclosing all
facts and details relating thereto to the Board of Directors and obtaining the
approval of the Board of Directors.
3. COMPENSATION.
3.1 BASE SALARY. The Corporation shall pay to the Employee for
the services to be rendered by the Employee hereunder a base salary (the "Base
Salary") at the rate of $145,000 per year, payable in equal installments
(subject to withholding tax) in accordance with the Corporation's regular
payroll schedule, which as of the date of this Agreement is bi-weekly on
Fridays. Such Base Salary as in effect from time to time may be increased
annually or more often as determined by the Compensation Committee of the Board
of Directors in its sole discretion. However, the Base Salary payable to the
Employee from time to time hereunder shall not be decreased.
3.2 INCENTIVE COMPENSATION. Each calendar year during the term of
this Agreement, the Corporation will adopt an incentive compensation plan for
certain of its executive employees, including the Employee. This incentive
compensation plan will provide for incentive bonus compensation ("Incentive
Compensation") to be paid to the Employee based upon the performance of the
Employee and the results of the Corporation's business and operations. The
parties agree that the Employee's potential Incentive Compensation for the 1998
calendar year shall not exceed fifty percent of the Employee's Base Salary. For
subsequent calendar years, the ceiling on the Employee's Incentive Compensation
shall be reevaluated by the Board of Directors and may be increased to reflect
the Employee's performance and his contribution to the overall success of the
Company.
3.3 CASH BONUS. A cash bonus in the amount of $25,000 will be
paid by the Company to the Employee upon the closing of the first acquisition
consummated by the Company following the Commencement Date.
4. BENEFITS.
4.1 EXECUTIVE BENEFITS GENERALLY. The Employee shall be entitled
to participate in and receive benefits from any insurance, medical, dental,
health and accident, hospitalization, disability, stock purchase, defined
benefit, defined contribution, or other employee benefit plan of the Corporation
which may be in effect at
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any time during the course of his employment with the Corporation and which is
generally available to executives of the Corporation (these being referred to as
the Employee's "Executive Benefits").
4.2 AUTOMOBILE. If and at such time that it becomes the policy of
the Corporation to provide automobiles or an automobile allowance to the
Corporation's senior executives for their use in connection with the
Corporation's business, the Corporation shall provide such an automobile or an
automobile allowance to the Employee in accordance with such policy.
4.3 REIMBURSEMENT OF EXPENSES. The Corporation shall reimburse
the Employee for all reasonable and ordinary expenses incurred by him on behalf
of the Corporation in the course of his duties hereunder upon the presentation
by the Employee of appropriate documentation substantiating the amount of and
purpose for which such expenses were incurred.
4.4 VACATIONS. The Employee shall be entitled to three (3) weeks
of paid vacation in each calendar year (to be prorated for any calendar year
during which the Employee is employed by the Corporation for less than the full
calendar year), which vacation shall be taken at times consistent with the
performance by the Employee of his obligations hereunder. Any vacation time not
fully used by the Employee in any one (1) calendar year may be carried over for
one (1) additional calendar year. If any such vacation time is carried over to a
subsequent calendar year, then any vacation time taken in the subsequent
calendar year shall be applied first against the carryover vacation time from
the prior calendar year.
5. DISABILITY OR DEATH. In the event the Employee incurs a disability,
which for purposes of this Agreement shall mean any mental or physical illness,
injury, or condition which results in the Employee being unable to fulfill his
duties under this Agreement on a regular basis, then the Corporation shall
nevertheless continue to provide to the Employee during such period or periods
of disability all compensation and benefits under this Agreement, except that,
during any one (1) calendar year the Corporation shall not be required to pay
the Base Salary or Incentive Compensation of the Employee for periods of
disability in excess of 180 days in total.
6. NONCOMPETITION DURING EMPLOYMENT. During the term of his employment
by the Corporation, the Employee shall not, directly or indirectly, engage in
any business competitive with that of the Corporation; provided, however, that
the foregoing shall not be deemed to prevent the Employee from investing in
securities of any company having a class of securities which is publicly traded,
so
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long as such investment holdings do not, in the aggregate, constitute more than
5% of any class of such company's securities.
7. TERM OF EMPLOYMENT AND RIGHTS UPON TERMINATION OF EMPLOYMENT.
7.1 TERM AND SCHEDULED TERMINATION DATE. The term of Employee's
employment hereunder shall begin on the Commencement Date and shall continue for
a term of three (3) years from the Commencement Date (this date of termination
of his employment being referred to as the "Scheduled Termination Date").
However, as of each anniversary date of the Commencement Date, the Scheduled
Termination Date shall automatically be extended for a successive one-year
period of time, unless more than ninety (90) days prior to the occurrence of
such anniversary date, either party gives notice to the other that such
Scheduled Termination Date shall not thereafter be so extended. If any such
notice is given, then the Scheduled Termination Date hereof shall not be
automatically extended upon the future occurrence of any such anniversary date.
Following the Scheduled Termination Date, the Employee shall not be entitled to
earn any further compensation or benefits under this Agreement.
7.2 TERMINATION BY THE CORPORATION WITHOUT CAUSE.
(a) The Corporation may terminate this Agreement at any time,
without cause and for any reason, upon notice to the Employee setting
forth the date of termination (this date of termination and any other
date of termination prior to the Scheduled Termination Date is referred
to as the "Early Termination Date"). In this event, the Employee shall
be entitled to continue to receive, for a period of one (1) year after
the Early Termination Date, the same Base Salary which the Employee was
receiving at the time of such Early Termination Date (in the manner and
as described in Section 3.1) and all Executive Benefits which the
Employee was receiving or entitled to receive as of such Early
Termination Date (in the manner and as described in Section 4.1).
Further, all outstanding stock options which shall have been granted to
the Employee shall immediately become exercisable (if not already
exercisable in full) and shall continue in full force and effect.
(b) In the event the Employee suffers from a disability (as
defined in Section 5) for a period of 180 business days out of any 360
consecutive business day period, then the Corporation may at any time no
later than thirty (30) days following the end of said 360-day period
terminate the employment of the Employee without cause, by notice to the
Employee setting forth the effective Early Termination Date. However,
the Corporation shall not have the right to terminate
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the employment of the Employee hereunder if, at the time the Corporation
gives notice of termination to the Employee, the Employee has then again
begun to render services for the Corporation as required hereunder.
Following an Early Termination Date because of disability, the Employee
shall be entitled to receive his Base Salary then in effect for a period
of one (1) year following his Early Termination Date and shall be
entitled to retain all of his Executive Benefits for a period of one (1)
year following his Early Termination Date. Further, the Employee's stock
options, to the extent not fully vested, would continue to vest during
the one-year period following his Early Termination Date.
(c) This Agreement shall terminate immediately upon the
Employee's death. In addition to any other compensation or benefits
payable or accrued to the benefit of the Employee as of the date of his
death, the Corporation shall pay to the Employee's executor or legal
representative an amount in cash equal to one (1) times the Employee's
Base Salary then in effect at the time of his death.
7.3 BY THE CORPORATION WITH CAUSE. The Corporation may terminate
this Agreement at any time for cause, by notice to the Employee setting forth
the Early Termination Date. The term "cause" shall mean (a) a wilful and
recurring refusal of the Employee to perform his duties, responsibilities or
obligations under this Agreement, which refusal continues for at least thirty
(30) days after notice thereof is given to the Employee by the Corporation
setting forth the facts upon which the notice is based, (b) the Employee's
conviction of a felony involving moral turpitude, or (c) the Employee's fraud
regarding any material matter with respect to the business or operations of the
Corporation. Following the occurrence of the Early Termination Date of the
Employee for cause, then the Employee shall not be entitled to earn any further
compensation or benefits under this Agreement.
7.4 BY EMPLOYEE WITHOUT CAUSE. The Employee may terminate this
Agreement at any time, without cause and for any reason, upon notice to the
Corporation setting forth the Employee's Early Termination Date. In such event,
the Employee shall not be entitled to earn any further compensation or benefits
under this Agreement.
7.5 BY EMPLOYEE WITH CAUSE. The Employee may terminate this
Agreement at any time with cause upon notice to the Corporation setting forth
the Early Termination Date. The term "cause" shall mean a breach of this
Agreement in any material way by the Corporation, which breach is not cured
within thirty (30) days after notice of such breach to the Corporation by the
Employee setting forth the facts upon which the notice is based. In the
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event of such Early Termination Date, then from the Early Termination Date until
the Scheduled Termination Date, the Employee shall be entitled to continue to
receive, the same Base Salary which the Employee was receiving at the time of
such Early Termination Date (in the manner and as described in Section 3.1) and
all Executive Benefits which the Employee was receiving or entitled to receive
as of such Early Termination Date (in the manner and as described in Section
4.1). Further, all outstanding stock options which shall have been granted to
the Employee shall become immediately exercisable (if not already exercisable in
full) and shall continue in full force and effect.
7.6 COMPENSATION, REIMBURSEMENTS, INDEMNIFICATION, AND BENEFITS
PAYABLE OR ACCRUED AS OF TERMINATION DATE. In the event this Agreement is
terminated, whether upon the Scheduled Termination Date or an Early Termination
Date, and regardless of the reason for termination, the Employee shall be
entitled to receive all compensation, reimbursements, and benefits hereunder
which were either payable to the Employee, or which had accrued to the benefit
of the Employee or which had been earned by the Employee as of the date of
termination (the "Termination Date"). Any such compensation, reimbursements, or
benefits shall be payable or provided to the Employee no less quickly than they
would have been payable or provided to the Employee had the Termination Date not
occurred. For these purposes, the Employee's compensation shall include a pro
rata portion of the Incentive Compensation payable to the Employee under Section
3.2. Further, the Employee shall be entitled to receive any indemnification
payments that may have accrued but have not been paid or that may thereafter
become payable to the Employee pursuant to the provisions of the Corporation's
Certificate of Incorporation, Bylaws or similar policy, plan or agreement
relating to the indemnification of directors or officers of the Corporation.
8. CHANGE OF CONTROL.
8.1 This Section 8 shall become effective, but not operative,
immediately upon the Commencement Date and shall remain in effect so long as the
Employee remains employed hereunder by the Corporation, but shall not be
operative unless and until there has been a Change in Control, as defined in
Section 8.4 hereof. Upon such a Change in Control, this Section 8 shall become
operative immediately.
8.2 If a Change in Control occurs (i) while the Employee is
employed by the Corporation hereunder, or (ii) subsequent to the Termination
Date of the Employee's employment hereunder other than by the Corporation for
cause, or death or disability, and prior to the later of the first anniversary
of such Termination Date or the second anniversary of the Commencement Date, or
(iii) within 180 days of the Scheduled Termination Date, the Employee may, in
his
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sole discretion, within twelve (12) months after the date of the Change in
Control, give notice to the Corporation that he intends to elect to exercise his
rights under this Section 8 (the "Notice of Intention"). Within thirty (30) days
after the Corporation's receipt of the Notice of Intention, the Corporation
shall provide written notice to the Employee setting forth the Corporation's
computation of the amount that would be payable pursuant to Section 8.3,
accompanied by the written opinion of the Corporation's independent certified
public accountants confirming the Corporation's computation. If the Employee
takes exception to the Corporation's computation of such amount, the Employee
may (but shall not be prejudiced in this right to later contest the amount
actually paid by failure to do so) give a further written notice to the
Corporation setting forth in reasonable detail the Employee's exceptions to the
Corporation's computation, accompanied by the written opinion of the Employee's
tax advisor confirming the basis for such exceptions. Exercise by the Employee
of his rights pursuant to this Section 8 shall only be made by giving further
notice to the Corporation (the "Notice of Exercise") within six (6) months from
the date of the Notice of Intention.
8.3 If the Employee gives the Notice of Exercise described in
Section 8.2 to the Corporation, the Termination Date of his employment hereunder
shall then occur; all outstanding stock options which are not then exercisable
shall immediately become exercisable in full; and the Corporation shall pay to
the Employee a lump sum amount equal to $1.00 less than three (3) times the
Employee's "base amount" (as defined by Section 280(G), Part IX, Subchapter B,
Chapter 1 of the Internal Revenue Code of 1986, as amended). The Corporation
shall, within ten (10) business days after the date of the Notice of Exercise,
deliver to the Employee its cashier's check in the amount payable pursuant to
this Section 8.3, and payment of such amount shall terminate the Employee's
rights to receive any and all other compensation, reimbursements,
indemnification, or benefits under this Agreement, other than those which are
payable to or have accrued to the Employee as described in Section 7.6.
8.4 For the purposes of this Agreement, a Change in Control shall
mean (i) a reportable change in control under the proxy rules of the Securities
and Exchange Commission, including the acquisition of a 30% beneficial voting
interest in the Corporation (other than such acquisition by Employee or an
affiliate of Employee), or (ii) a change in any calendar year of such number of
directors as constitutes a majority of the board of directors of the
Corporation, unless the election, or the nomination for election by the
Corporation's shareholders, of each new director was approved by a vote of at
least two-thirds (2/3) of the directors then in office who were directors at the
beginning of the calendar year.
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9. POST-EMPLOYMENT ACTIVITIES.
9.1 For a period of two (2) years after the Employee's
Termination Date, except for a termination subsequent to a Change in Control of
the Corporation and further except for a termination by the Employee pursuant to
Section 7.5 hereof, then the Employee shall not, directly or indirectly, engage
in any business competitive with that of the Corporation and its subsidiaries;
provided, however, that the foregoing shall not be deemed to prevent the
Employee from investing in securities which are publicly traded, so long as such
investment holdings do not, in the aggregate, constitute more than 5% of any
class of such company's securities.
9.2 The Employee acknowledges that he has been employed for his
special talents and that his leaving the employ of the Corporation would
seriously and adversely affect the business of the Corporation. In addition to
all remedies permitted by law or in equity and without limiting any injunctive
or other relief to which the Corporation may be entitled in respect of any
obligation of the Employee, the Corporation shall be entitled to injunctive
relief to enforce the provisions of Section 9.1 hereof; provided, that the
Corporation shall not be entitled to injunctive relief or any other relief with
respect to Section 9.1 hereof if at the time such relief is sought the
Corporation has been in default of any of its obligations to the Employee
pursuant to any of the terms of Sections 7.2, 7.5, or 7.6 hereof.
9.3 The Employee will not, during the period of two (2) years
after his Termination Date, except for a termination subsequent to a Change in
Control of the Corporation and further except for a termination by the Employee
pursuant to Section 7.5 hereof, either in the Employee's individual capacity or
as agent for another, hire or offer to hire or entice away any person who has
been an officer, employee, or agent of the Corporation or any of its
subsidiaries at any time during the immediately preceding year or in any other
manner persuade or attempt to persuade any of such persons to discontinue their
relationship with the Corporation or any of its subsidiaries nor divert or
attempt to divert from the Corporation or any of its subsidiaries any business
whatsoever by influencing or attempting to influence any customer or supplier of
the Corporation or any of its subsidiaries to diminish or discontinue its
business with the Corporation or such subsidiary.
10. CONFIDENTIAL INFORMATION. The Employee shall not at any time during
the term of this Agreement or after the termination hereof directly or
indirectly divulge, furnish, use, publish or make accessible to any person or
entity any Confidential Information (as hereinafter defined). Any records of
Confidential Information prepared by the Employee or which come into Employee's
possession during this Agreement are and remain the property of the
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Corporation, and upon termination of Employee's employment all such records and
copies thereof shall be either left with or returned to the Corporation. The
term "Confidential Information" shall mean information disclosed to the Employee
or known, learned, created or observed by him as a consequence of or through his
employment by the Corporation, not generally known in the relevant trade or
industry, about the Corporation's (and its subsidiaries') business activities,
products, customers, suppliers, services and procedures, including, but not
limited to, information concerning costs, product performance, customer
requirements, advertising, sales promotion, publicity, sales data, research,
finances, accounting, methods, procedures, trade secrets, business plans, client
or supplier lists and records, potential client or supplier lists, and client or
supplier billing. Notwithstanding the foregoing, "Confidential Information"
shall not include information publicly disclosed by the Corporation or known by
the Employee other than because of his employment with the Corporation.
11. GENERAL.
11.1 ASSIGNMENT. This Agreement shall not be assignable.
11.2 NOTICES. All notices under this Agreement shall be in
writing and shall be deemed to have been given at the time when mailed by
registered or certified mail, addressed to the address set forth below of the
party to which notice is given, or to such changed address as such party may
have fixed by notice:
TO THE CORPORATION: U S Liquids Inc.
000 X. Xxx Xxxxxxx Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000
ATTN: Xxxxxxx X. Xxxxxx
TO THE EMPLOYEE: Xxxx X. Van Rooyan
00000 Xxxxx Xxxxx Xxxx
Xxxx, Xxxxx 00000
11.3 ENTIRE AGREEMENT. This instrument contains and constitutes
the entire agreement between and among the parties herein and supersedes all
prior agreements and understandings between the parties hereto relating to the
subject matter hereof.
11.4 APPLICABLE LAW. This Agreement shall be construed, enforced
and governed in accordance with the laws of the State of Texas.
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11.5 INVALIDITY. If any provision contained in this Agreement
shall for any reason be held to be invalid, illegal, void or unenforceable in
any respect, such provision shall be deemed modified so as to constitute a
provision conforming as nearly as possible to such invalid, illegal, void or
unenforceable provision while still remaining valid and enforceable, and the
remaining terms or provisions contained herein shall not be affected thereby.
11.6 DISPUTE RESOLUTION. Any dispute arising in any way out of
this Agreement and which cannot be resolved by good faith negotiations between
the parties within thirty (30) days after either party shall have notified the
other party in writing of its desire to arbitrate the dispute shall be submitted
to and settled through binding arbitration in accordance with the rules of the
American Arbitration Association as from time to time in effect. The arbitration
proceedings shall be conducted by a sole arbitrator who shall be an attorney
with not less than ten (10) years experience in commercial law. All disputes or
claims of the parties subject to arbitration shall be consolidated into a single
arbitration proceeding. The arbitration proceedings shall be conducted in
Houston, Texas. The award or determination of the arbitrator shall be final and
binding upon all parties and shall be subject to enforcement in any court of
competent jurisdiction. The arbitrator shall have the authority to award costs
and expenses of arbitration to either party as the arbitrator sees fit.
11.7 BINDING EFFECT. This Agreement shall be binding upon, inure
to the benefit of and be enforceable by the parties hereto and their respective
heirs, executors, personal representatives and successors.
11.8 SEVERABILITY. If any provision of this Agreement shall be
held to be void or unenforceable for any reason, said provision shall be deemed
modified so as to constitute a provision conforming as nearly as possible to
said void or unenforceable provision while still remaining valid and enforceable
and the remaining terms and provisions hereof shall not be affected thereby.
11.9 AMENDMENT AND WAIVER. This Agreement may only be amended by
a writing executed by each of the parties hereto. Any party may waive any
requirement to perform by the other party, provided that such waiver shall be in
writing and executed by the party granting the waiver. The parties agree that a
waiver by one party on one occasion shall not be deemed a waiver on any other
occasion.
11.10 OPTION TO PURCHASE STOCK. As of the Commencement Date, the
Employee shall be granted a nonqualified stock option to purchase 50,000 shares
of the Corporation's common stock, par value $.01, at a price of $20.31 per
share. Such option shall vest at a cumulative rate of 331/3% per year, on the
first and
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each succeeding anniversary date of the Commencement Date. Except as set forth
herein, the terms and conditions applicable to such option shall be those
contained in the Corporation's 1996 Incentive Stock Option Plan, as amended, the
terms and conditions of which are incorporated herein by this reference.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first above written.
"CORPORATION" U S LIQUIDS INC.
By:/S/ XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx, Chief
Executive Officer
"EMPLOYEE" /S/ XXXX X. VAN ROOYAN
Xxxx X. Van Rooyan
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