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EXHIBIT 10.10
EMPLOYMENT AGREEMENT
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This EMPLOYMENT AGREEMENT ("Agreement"), entered into as of this ____
day of __________, 199___, by and between OHM Corporation, an Ohio corporation,
(the "Company"), and _____________________________ (the "Executive");
WITNESSETH:
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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:
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(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 transaction 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;
(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
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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 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
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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 1(a)(iv)
(describing an event under subparagraph 1(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:
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(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:
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(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 than the highest
aggregate annual bonus, incentive or other payments of cash compensation in
addition
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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.
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4. Termination Following a Change in Control:
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(a) In the event of the occurrence of a Change in Control, this
Agreement may be terminated 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 that, 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:
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(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 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
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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 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:
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(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 further 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
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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 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
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Company (as the term "welfare benefit plan" is
defined in Section 3(1) 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 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
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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:
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(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 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 8(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
$100,000,000 (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
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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.
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 11(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
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breach, 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 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 WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first above written.
OHM CORPORATION
By:
_______________________________
James L. Kirk, 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, 16406 U.S. Route 224 East, Findlay, Ohio
45840, 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
Pamela K.M. Beall
Robert J. Blackwell
Kris E. Hansel
James L. Kirk
Joseph R. Kirk
Philip V. Petrocelli
John J. Ray III
Philip O. Strawbridge*
Michael A. Szomjassy
*Subject to his election as an officer of the Company.