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EXHIBIT 10
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 21st day of August 1996, by and between OHM
Corporation (hereinafter referred to as "OHM") and Joseph R. Kirk (hereinafter
referred to as "Executive").
WHEREAS, Executive is one of the founders of OHM and contributed, for
nearly three decades, to the growth and success of OHM;
WHEREAS, Executive is a recognized industry leader in the business of
hazardous waste remediation;
WHEREAS, OHM desires to enter into an employment agreement to ensure
that Executive's services will remain available exclusively for the benefit of
OHM;
NOW THEREFORE, in consideration of the promises and conditions set
forth herein, the sufficiency of which hereby is acknowledged, and intending to
be legally bound, OHM and Executive agree as follows:
1. DEFINITIONS. As used in this Agreement, any reference to OHM shall
include its predecessors and successors and, in their capacities as such, all of
its past, present and future shareholders, directors, officers, employees,
representatives, attorneys, and assigns, as well as all its affiliates,
controlling corporations, divisions and subsidiaries, and any reference to
Executive shall include, in their capacities as such, his attorneys, heirs,
administrators, representatives, successors, agents and assigns.
2. SCOPE OF EMPLOYMENT. Executive agrees to provide services to OHM
during the Employment Period (as defined below) as directed from time to time by
the Chief Executive Officer of OHM or his delegate, including, but not limited
to, the following:
- Executive shall assist the Company from time to time
as necessary in the assessment, evaluating and
performance of significant hazardous waste remediation
opportunities.
- Executive shall provide advice to OHM from time to
time related to its emergency response services.
- Executive shall from time to time participate as a
member of OHM's high hazard review committee to assist
OHM in the evaluation of OHM's performance of certain
high risk activities, including site visits, job
scoping and technical evaluation.
- Executive shall from time to time assist and provide
direction to OHM with respect to the selection, design
and modification of equipment.
- Executive shall from time to time provide advice to
OHM as to equipment and resource allocation and
utilization.
- Executive shall from time to time assist OHM with
respect to sales and marketing to OHM's clients.
- Executive shall from time to time provide advice and
recommendations to OHM
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with respect to compliance with internal policy and
regulatory directives.
3. CONSIDERATION. OHM hereby agrees to provide Executive with the
following benefits:
(a) Except as set forth in Paragraph 4, Executive shall remain an
OHM employee for a period of five years from September 1, 1996 and
through the earlier of (i) August 31, 2001, or (ii) the termination of
the Agreement pursuant to Paragraph 4 of this Agreement (the "Employment
Period"); and shall be paid an initial annual salary of $250,000; such
annual salary amount shall decrease by $25,000 during each of the next
four successive years, in each case less all applicable income and other
withholdings;
(b) Continued life insurance, disability and accidental death and
dismemberment benefits in the amounts and type provided to other senior
executives of OHM through the Employment Period;
(c) Continued health care insurance coverage in the amounts and type
provided to other senior executives of OHM through the Employment
Period;
(d) All options granted to Executive prior to the date hereof under
the OHM 1986 Stock Option Plan (the "Plan") shall be and remain fully
exercisable through the Employment Period (to the extent such options
are exercisable and become vested during the Employment Period pursuant
to the terms of the agreements evidencing such options). Executive shall
not be entitled to additional stock option grants during the Employment
Period; and
(e) Benefits and perquisites, in the amounts and type provided as of
the date hereof to the Executive.
In the event of any Change in Control (as defined below) of OHM, the
Executive's employment shall terminate and all amounts due and payable pursuant
to paragraph 3(a) for the remaining unfulfilled term of the Employment Period
shall be payable in full and the Executive shall be reimbursed for the cost of
continuing health insurance coverage during the 18 month period following the
termination of his employment. This Agreement shall not limit any other benefit
which may be payable to the Executive in the event of a Change in Control of OHM
pursuant to any other retirement, benefit or other compensation plan in which
the Executive participates.
A "Change in Control" shall have occurred if at any time during the
Employment Period any of the following events shall occur:
(i) OHM 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 shareholders of OHM
immediately prior to such transactions;
(ii) OHM sells all or substantially all of its assets to any other
corporation or other legal person, and less than a majority of
the combined voting power of the then-outstanding securities of
which are held in the aggregate by the shareholders of OHM
immediately prior to such sale;
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(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 OHM;
(iv) OHM 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 13A (or any successor
schedule, form or report or item therein) that a change in
control of OHM 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
OHM cease for any reason to constitute at least a majority
thereof, unless the election, or the nomination for election by
OHM's shareholders, of each Director of OHM first elected during
such period was approved by a vote of at least two-thirds of the
Directors of OHM then still in office who were Directors of OHM
at the beginning of any such period.
Notwithstanding the foregoing provisions, a "Change in Control" shall
not be deemed to have occurred for purposes of this Agreement solely because (i)
OHM, (ii) an entity in which OHM directly or indirectly beneficially owns 50% or
more of the voting securities of such entity, or (iii) any OHM employee stock
ownership plan or any other employee benefit plan of OHM, 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 securities, whether in excess of
25% or otherwise, or because OHM reports that a change in control of OHM has or
may have occurred or will or may occur in the future by reason of such
beneficial ownership.
4. TERMINATION. This Agreement shall terminate and no further
obligations shall be due and owing by OHM or the Executive in the event:
(a) OHM terminates Executive for "Cause" ("Cause" is defined herein
as the engagement by the Executive in any illegal activity, or
wilful misconduct which is materially adverse to OHM's best
interests); or
(b) Executive terminates this Agreement upon 180 days' notice.
5. RESTRICTIVE COVENANT AND CONFIDENTIAL INFORMATION. Executive
acknowledges that during the course of his employment with OHM, he has access to
and is entrusted with confidential and proprietary information including, but
not limited to, information concerning sales processes and procedures; costs;
general business procedures and operations; sales and/or profits; financial
matters; merchandising, sales and marketing strategies and techniques; expansion
plans; methods of doing business
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or servicing customers; methods of pricing or charging for services; business
forms developed by or for OHM; form and content of proposals, reports and
analyses; names of suppliers, personnel, customers and potential customers;
advertising sources and potential advertising sources; bids; contracts;
proposals; software programs, however embodied; and information about or
belonging to customers, potential customers, suppliers and others. Accordingly,
Executive specifically agrees, during the Employment Period, not to: (a) engage
in any business activity in direct or indirect (as a principal, shareholder,
partner, or financier) competition with the business of OHM; (b) request
directly or indirectly, that any present or potential customer or supplier,
cancel, limit or postpone their business with OHM; or (c) hire or solicit for
employment, directly or indirectly, or actively attempt to influence, any OHM
employee or independent contractor to terminate his relationship with OHM.
6. INJUNCTIVE RELIEF. Executive acknowledges that any breach by him of
Paragraph 5 of this Agreement would substantially and materially impair and
irreparably harm OHM's business and goodwill; that such impairment and harm
would be difficult to measure and, therefore, total compensation is solely
monetary terms would be inadequate. Executive therefore agrees that in the event
of any breach or threatened breach by him of Paragraph 5, OHM shall be entitled,
in addition to monetary damages or other remedies, to equitable relief,
including injunctive relief.
7. BREACH. In the event of a breach of this Agreement, the non-breaching
party shall provide written notice to the breaching party of the specific nature
of the breach. The breaching party shall have ten days to cure the breach. If
the breaching party disputes any allegation of breach, the issue shall be
submitted by the parties to binding arbitration within 10 days and a decision by
the arbitrator (who shall be mutually acceptable to the parties) shall be
reached 30 days thereafter. The arbitration shall occur pursuant to the rules of
the American Arbitration Association. If the breaching party fails to cure the
breach within the time specified above and either (i) fails to submit the issue
to arbitration within such time period allowed above, or (ii) fails to prevail
in any such arbitration, the non-breaching party may enforce its rights under
this Agreement in any court of competent jurisdiction. The non-prevailing party
in any proceeding shall reimburse the prevailing party for the reasonable costs
and expenses, including attorneys' fees incurred.
8. COOPERATION. Executive further agrees that, subject to reimbursement
by OHM of reasonable out-of-pocket costs and expenses including reasonable costs
and expenses of Executive's counsel, if any, Executive will fully cooperate with
OHM and its counsel with respect to any matter (including litigation,
investigation or governmental proceeding) which relates to matters with which
Executive was involved during the term of employment with OHM or during any
period under this Agreement pursuant to which Executive received benefits from
OHM. Such cooperation shall include appearing from time to time at OHM or OHM's
counsel for conferences and interviews and generally providing OHM and its
counsel with the full benefit of Executive's knowledge with respect to any such
matter. Subject to the advice of his counsel, Executive agrees to cooperate with
OHM in any matter, litigation, investigation or governmental proceeding, and to
do so in a timely fashion and at such times as may be mutually agreeable to the
parties concerned.
9. CONSTRUCTION. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio. Captions herein are inserted for
convenience, do not constitute a part of this Agreement, and shall not be
admissible for the purpose of proving the intent of the parties. This Agreement
may be executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument, and in pleading or proving any provision of this Agreement it shall
not be necessary to produce more than one such counterpart.
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10. ENTIRE AGREEMENT. This Agreement contains and constitutes the entire
understanding and Agreement between the parties hereto respecting the subject
matter hereof and supersedes and cancels all previous negotiations, agreements,
commitments, and writings in connection herewith. Neither of the parties hereto
has relied upon any representation made by or on behalf of the other party and
the same are not enforceable except to the extent set forth in writing in this
Agreement.
11. INDEMNIFICATION. Notwithstanding anything to the contrary contained
herein, that certain Indemnification Agreement entered into between OHM and
Executive dated as of August 5, 1986 shall continue in full force and effect and
nothing contained herein shall in any manner be construed to limit or restrict
OHM's obligation to indemnify, defend and hold harmless Executive from and
against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, fees and expenses of counsel) that may be
incurred by or awarded against Executive in each case arising out of or in
connection with or by reason of any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that Executive is or was at anytime a director, employee or
officer of OHM or any of its subsidiaries or otherwise arising out of or in
connection with this Agreement or Executive's relationship with OHM.
IN WITNESS WHEREOF, all parties have set their hands to this Agreement
as of the date written above.
Witness:
Patricia L. Shuck /s/ Joseph R. Kirk
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Joseph R. Kirk
Attest: OHM CORPORATION
Pamela K.M. Beall By: /s/ John J. Ray
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Assistant Secretary Title: Vice President