EXHIBIT 10.57 FORM OF EXECUTIVE EMPLOYMENT AGREEMENT
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OFFERED TO THE FOLLOWING KEY EMPLOYEES ON FEBRUARY 11, 2003 WITH THE FOLLOWING
EXPIRATION DATES:
KEY EMPLOYEE AGREEMENT EXPIRATION MINIMUM SALARY
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STEPHAN ANTHONY ROMANO DECEMBER 31, 2005 $ 205,000
JAMES RANDALL BAUMGARDNER DECEMBER 31, 2004 $ 174,000
JOHN SCOTT NICHOLSON DECEMBER 31, 2004 $ 155,000
MICHAEL JAMES GILBERG DECEMBER 31, 2004 $ 105,000
EXECUTIVE EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Employment Agreement") is made and entered
into as of the ____ day of February, 2003 (the "Commencement Date"), by and
between AMERICAN ECOLOGY CORPORATION, a Delaware corporation (the "Company), and
_________________, an individual ("Employee").
WHEREAS, the Company desires to employ Employee upon the terms and subject
to the terms and conditions set forth in this Employment Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual promises,
covenants and conditions herein contained and for other good and valuable
considerations, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto intending to be legally bound hereby agree as follows:
EMPLOYMENT. The Company hereby employs Employee, and Employee hereby accepts
employment with the Company, all upon the terms and subject to the conditions
set forth in this Employment Agreement.
TERM OF EMPLOYMENT. The term of employment of Employee by the Company pursuant
to this Employment Agreement shall be for the period (the "Employment Period")
commencing on the Commencement Date and ending _______________, or such earlier
date that Employee's employment is terminated in accordance with the provisions
of this Employment Agreement; provided, however, that the Employment Period
shall automatically renew for additional one (1) year periods if neither the
Company nor Employee has notified the other in writing of its or his intention
not to renew this Employment Agreement on or before sixty (60) days prior to the
expiration of the Employment Period (including any renewal thereof).
CAPACITY AND DUTIES. Employee is and shall be employed in the capacity of Vice
President and Controller of the Company and its subsidiaries and shall have such
other duties, responsibilities and authorities as may be assigned to him by the
Board of Directors of the Company (the "Board") not materially inconsistent with
Employee's positions with the Company. Except as otherwise herein provided,
Employee shall devote his entire business time, best efforts and attention to
promote and advance the business of the Company and its subsidiaries and to
perform diligently and faithfully all the duties, responsibilities and
obligations of Employee to be performed by him under this Employment Agreement.
Employee's duties shall include all of those duties being performed by Employee
as of the date hereof. Employee shall report to the Chief Financial Officer of
the Company.
PLACE OF EMPLOYMENT. Employee's principal place of work shall be main office of
the Company, currently located in Boise, Idaho provided that the location of the
Company and its offices may be moved from time to time in the discretion of the
Board.
NO OTHER EMPLOYMENT. During the Employment Period, Employee shall not be
employed in any other business activity, whether or not such activity is pursued
for gain, profit or other pecuniary advantage, provided, however, that this
restriction shall not be construed as preventing Employee from (i) participating
in charitable, civic, educational, professional, community or industry affairs;
and (ii) investing his personal assets in a business which does not compete with
the Company or its subsidiaries or with any other company or entity affiliated
with the Company, where the form or manner of such investment will not require
services on the part of Employee in the operation of the affairs of the business
in which such investment is made and in which his participation is solely that
of a passive investor or advisor, so long as the activities in (i) and (ii),
above, do not materially interfere with the performance of Employee's duties
hereunder or create a potential business conflict or the appearance thereof.
COMPENSATION. During the Employment Period, subject to all the terms and
conditions of this Employment Agreement and as compensation for all services to
be rendered by Employee under this Employment Agreement, the Company shall pay
to or provide Employee with the following:
1. BASE SALARY. The Company shall pay to employee an annual base salary
at the rate paid at the time this Employment Agreement is executed, or
as adjusted in the future by the Company, but in no case shall the
annual base salary be less than $105,000. Such base salary shall be
payable in accordance with the regular payroll practices of the
Company.
2. BONUS. Employee shall be eligible to participate in any cash bonus
plan(s) of the Company which are in effect from time to time,
including the cash bonus opportunity granted to Employee under the
Company's Long-Term Incentive Compensation Program. Anything to the
contrary in this Agreement notwithstanding, the Company reserves the
right to modify or eliminate the cash bonus plan(s) at any time.
3. VACATION AND OTHER BENEFITS. Employee shall be entitled to vacation
and other benefits applicable to other similarly situated employees
based on length of service, but in no event greater than the amount
accrued by other similarly situated employees with an equivalent
length of service.
4. OTHER. The Company may provide Employee with other benefits. In the
event the Company provides other benefits not specifically stated
herein, these other benefits be specified in writing and attached
hereto in an attachment entitled, "Exhibit: Other Benefits".
5. STOCK OPTION GRANTS. During the Employment Period, Employee shall be
eligible to participate in any equity-based incentive compensation
plan or program adopted by the Company, including the grant of options
to purchase stock pursuant to the Company's Long-Term Incentive
Compensation Program.
EXPENSES. The Company shall reimburse Employee for all reasonable, ordinary and
necessary expenses including, but not limited to, automobile and other business
travel and customer entertainment expenses, incurred by him in connection with
his employment in accordance with the Company's expense reimbursement policy;
however, Employee shall render to the Company a complete and accurate accounting
of all such expenses in accordance with the substantiation requirements of the
Internal Revenue Code, as amended (the "Code"), as a condition precedent to such
reimbursement.
ADHERENCE TO STANDARDS. Employee shall comply with the written policies,
standards, rules and regulations of the Company from time to time established
for all executive officers of the Company consistent with Employee's position
and level of authority.
REVIEW OF PERFORMANCE. The Company shall periodically review and evaluate the
performance of Employee under this Employment Agreement with Employee.
TERMINATION OF EMPLOYMENT. Employee's employment and this Employment Agreement
may be terminated:
1. By either party by delivering notice of non-renewal as set forth in
"Term of Employment", above;
2. Upon no less than thirty (30) days' written notice from the Company to
Employee at any time without Cause (as defined below) and other than
due to Employee's death or Disability;
3. Immediately upon written notice from the Company to Employee for
Cause;
4. Due to the death or Disability (as hereinafter defined) of Employee;
5. By Employee at any time with or without Good Reason (as hereinafter
defined) upon thirty (30) days' written notice from Employee to the
Company (or such shorter period to which the Company may agree); or
6. Upon the mutual agreement of the Company or Employee.
In the event of termination of Employee's employment with the Company for any
reason, or if Employee is required by the Board, Employee agrees to resign, and
shall automatically be deemed to have resigned, from any offices (including any
directorship) Employee holds with the Company effective as of the termination
date of Employee's employment hereunder, or, if applicable, effective as of a
date selected by the Board.
TERMINATION BY THE COMPANY FOR CAUSE OR BY EMPLOYEE WITHOUT GOOD REASON. If
Employee's employment and this Employment Agreement are terminated by the
Company for Cause (as hereinafter defined) or by Employee without Good Reason,
the Company shall pay Employee the Accrued Obligations (as hereinafter defined).
TERMINATION BY THE COMPANY WITHOUT CAUSE OR BY EMPLOYEE FOR GOOD REASON. If
Employee's employment and this Employment Agreement are terminated by the
Company without Cause or if Employee terminates his employment and this
Employment Agreement for Good Reason, Employee shall be entitled to receive his
base salary and medical, hospitalization and disability benefits to which he was
entitled at the date of termination for the greater of (i) the remainder of the
term of the Agreement or (ii) twelve (12) months after the date of such
termination of employment. The Company shall also pay Employee the Accrued
Obligations.
TERMINATION DUE TO DEATH OR DISABILITY. If Employee's employment and this
Employment Agreement are terminated due to his death or Disability (as
hereinafter defined), the Company shall continue to pay to Employee (or the
estate of Employee in the event of termination due to the death of employee)
Employee's then-current base salary for six (6) months after the date of such
termination of employment. In the event of termination by the Company by reason
of Employee's death or Disability, the Company will pay all medical,
hospitalization or disability premiums for six (6) months from the date of
termination at the same cost-sharing basis as in effect on the date of such
termination. Unless required by law, the benefits provided under this
sub-paragraph shall be no less favorable to Employee in terms of amounts,
deductibles and costs to him, if any, than such benefits provided by the Company
to him prior to his death or Disability and shall not be interpreted so as to
limit any benefits to which Employee, as a terminated employee of the Company,
or his family may be entitled under the Company's life insurance, medical,
hospitalization or disability plans following his Date of Termination or under
applicable law.
DEFINITIONS. In addition to the words and terms elsewhere defined in this
Employment Agreement, certain capitalized words and terms used in this
Employment Agreement shall have the meanings given to them by the definitions
and descriptions in this Section entitled Definitions unless the context or use
indicates another or different meaning or intent, and such definition shall be
equally applicable to both the singular and plural forms of any of the
capitalized words and terms herein defined. The following words and terms are
defined terms under this Employment Agreement:
1. "Disability" shall mean a physical or mental illness which, in the
judgment of the Company after consultation with a licensed physician
selected by the Board, and as to whom Employee has no reasonable
objection, impairs Employee's ability to perform any of the essential
functions of his position under this Employment Agreement as an
employee on a full-time basis for three (3) consecutive months or an
aggregate period of three (3) months out of any consecutive twelve
(12) months. If any question arises as to whether Employee is
disabled, upon reasonable request therefor by the Board, Employee
shall submit to reasonable medical examination for the purpose of
determining the existence, nature and extent of any such disability.
2. A termination with "Cause" shall mean a termination of this Employment
Agreement by reason of a determination by two-thirds (2/3) of the
members of the Board voting that Employee:
a. Has engaged in willful neglect (other than neglect resulting
from his incapacity due to physical or mental illness) or
misconduct;
b. Has engaged in conduct the consequences of which are
materially adverse to the Company, monetarily or otherwise;
c. Has materially breached the terms of this Employment
Agreement or any change in control or similar agreement in
effect between Employee and the Company, and such breach
persisted after notice thereof from the Company and a
reasonable opportunity to cure; or
d. Has been convicted of (or has plead guilty or no contest to)
any felony other than a traffic violation.
3. "Good Reason" shall mean the occurrence of any of the following
without Employee's prior written consent during the Employment Period,
which occurrence continues for ten (10) days after written notice
thereof from Employee to the Board:
a. Any material adverse change in Employee's status, title,
authorities or responsibilities under this Employment
Agreement which represents a demotion from such status,
title, authorities or responsibilities which are materially
inconsistent with his status, title, position or work
responsibilities set forth in this Employment Agreement, or
any removal of Employee from, or failure to appoint, elect,
reappoint or reelect Employee to, any of his positions,
except in connection with the termination of his employment
with or without Cause, or as a result of his death or
Disability, provided, however, that no change in title,
authorities or responsibilities customarily attributable
solely to the Company ceasing to be a publicly traded
corporation shall constitute Good Reason hereunder;
b. The exclusion of Employee in any incentive, bonus or other
compensation plan in which Employee participated at the time
that this Employment Agreement is executed, unless an
equitable arrangement (embodied in an ongoing substitute or
alternative plan) has been made with respect to the failure
to continue such plan, or the failure by the Company to
continue Employee's participation therein, or any action by
the Company which would directly or indirectly materially
reduce his participation therein or reward opportunities
thereunder; provided, however, that Employee continues to
meet all eligibility requirements thereof. Notwithstanding
the foregoing, this provision shall not apply to the
exclusion of Employee in any incentive, bonus or other
compensation plan in which Employee participated at the time
that this Employment Agreement is executed to the extent
that such termination is required by law;
c. Any amendment, modification or termination of the Company's
Management Incentive Plan which materially and adversely
affects Employee's rights thereunder.
d. The failure by the Company to continue in effect any
employee benefit plan (including any medical,
hospitalization, life insurance or disability benefit plan
in which Employee participates), or any material fringe
benefit or prerequisite enjoyed by him unless an equitable
arrangement (embodied in an ongoing substitute or
alternative plan) has been made with respect to the failure
to continue such plan, or the failure by the Company to
continue Employee's participation therein, or any action by
the Company which would directly or indirectly materially
reduce his participation therein or reward opportunities
thereunder, or the failure by the Company to provide him
with the benefits to which he is entitled under this
Employment Agreement; provided, however, that Employee
continues to meet all eligibility requirements thereof.
Notwithstanding the foregoing, this provision shall not
apply to the exclusion of Employee in any employee benefit
plan in which Employee participated at the time that this
Employment Agreement is executed to the extent that such
termination is required by law, or to such failure to
continue any employee benefit plan or fringe benefit, or
Employee's participation therein or reward opportunity
thereunder if such failure to continue such plan or benefit
is applicable to the Company's executive officers and/or
employees generally ;
e. Any material breach by the Company of any provision of this
Employment Agreement;
f. The failure of the Company to obtain a reasonably
satisfactory agreement from any successor or assign of the
Company to assume and agree to perform this Employment
Agreement, as contemplated in the Section entitled
SUCCESSORS hereof; or
g. any termination by Employee during the thirty (30)-day
period immediately following the first anniversary of the
date of any Change in Control (as defined herein) of the
Company.
4. "Change of Control" shall be deemed to have occurred upon:
a. the consummation of a merger or consolidation of the Company
with or into another entity or any other corporate
reorganization, if more than 50% of the combined voting
power of the continuing or surviving entity's securities
outstanding immediately after such merger, consolidation or
other reorganization is owned by persons who were not
stockholders of the Company immediately prior to such
merger, consolidation or other reorganization; provided,
however, that a public offering of the Company's securities
shall not constitute a corporate reorganization;
b. the sale, transfer, or other disposition of all or
substantially all of the Company's assets;
c. a change in the composition of the Board, as a result of
which fewer than 50% of the incumbent directors are
directors who either (x) had been directors of the Company
on the date 24 months prior to the date of the event that
may constitute a Change of Control (the "original
directors") or (y) were elected, or nominated for election,
to the Board with the affirmative votes of at least a
majority of the aggregate of the original directors who were
still in office at the time of the election or nomination
and the directors whose election or nomination was
previously so approved; or
d. 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.
5. "Accrued Obligations" shall include (i) any unpaid base salary through
the date of termination and any accrued vacation in accordance with the
Company's policy; (ii) any unpaid bonus earned with respect to any fiscal year
ending on or prior to the date of termination; (iii) reimbursement for any
unreimbursed business expenses incurred through the date of termination; and
(iv) all other payments, benefits or fringe benefits to which Employee may be
entitled under the terms of any applicable compensation arrangement or benefit,
equity or fringe benefit plan or program or grant or this Employment Agreement.
NOTICES. For the purposes of this Employment Agreement, notices and all other
communications provided for in the Employment Agreement shall be in writing and
shall be deemed to have been duly given when personally delivered or sent by
certified mail, return receipt requested, postage prepaid, or by expedited
(overnight) courier with established national reputation, shipping prepaid or
billed to sender, in either case addressed to the respective addresses last
given by each party to the other (provided that all notices to the Company shall
be directed to the attention of the Chairman, Board, with a copy to the
Secretary of the Company) or to such other address as either party may have
furnished to the other in writing in accordance herewith. All notices and
communication shall be deemed to have been received on the date of delivery
thereof, or on the second day after deposit thereof with an expedited courier
service, except that notice of change of address shall be effective only upon
receipt.
- Company at: 300 East Mallard Drive, Suite 300, Boise, Idaho 83706.
- Employee at: 300 East Mallard Drive, Suite 300, Boise, Idaho 83706.
LIFE INSURANCE. The Company may, at any time after the execution of this
Employment Agreement, apply for and procure as owner and for its own benefit,
life insurance on Employee, in such amounts and in such form or forms as the
Company may determine. Employee shall, at the request of the Company, submit to
such medical examinations, supply such information, and execute such documents
as may be required by the insurance company or companies to whom the Company has
applied for such insurance. Employee hereby represents that to his knowledge he
is in excellent physical and mental condition and is not under the influence of
alcohol, drugs or similar substance.
CONFIDENTIALITY. Employee agrees not to disclose or reveal to any person or
entity outside the Company any secret or confidential information concerning any
Company product, process, equipment, machinery, design, formula, business, or
other activity (collectively, "Confidential Information") without prior
permission of Company in writing. Confidential Information shall not include
any information which is in the public domain or becomes publicly known through
no wrongful act on the part of Employee or breach of this Employment Agreement.
Employee acknowledges that the Confidential Information is vital, sensitive,
confidential and proprietary to the Company. The obligation to protect the
secrecy of such information continues after employment with Company may be
terminated. In furtherance of this agreement, Employee acknowledges that all
Confidential Information which Employee now possesses, or shall hereafter
acquire, concerning and pertaining to the business and secrets of the Company
and all inventions or discoveries made or developed, or suggested by or to
Employee during said term of employment relating to Company's business shall, at
all times and for all purposes, be regarded as acquired and held by Employee in
his fiduciary capacity and solely for the benefit of Company.
Employee agrees that all inventions, innovations, improvements, technical
information, systems, software developments, methods, designs, analyses,
drawings, reports, service marks, trademarks, trade names,
logos and all similar or related information (whether patentable or
unpatentable) which relate to the Company's or any of its subsidiaries or
affiliates' actual or anticipated business, research and development or existing
or future products or services and which are conceived, developed or made by
Employee (whether or not during usual business hours and whether or not alone or
in conjunction with any other person) while employed by the Company (including
those conceived, developed or made prior to the date of this Agreement) together
with all patent applications, letters patent, trademark, trade name and service
mark applications or registrations, copyrights and reissues thereof that may be
granted for or upon any of the foregoing (collectively referred to herein as the
"Work Product"), belong in all instances to the Company or its subsidiaries or
affiliates. Employee will promptly perform all actions reasonably requested by
the Board (whether during or after his employment with the Company) to establish
and confirm the Company's or its subsidiaries or affiliates' ownership of such
Work Product (including, without limitation, the execution and delivery of
assignments, consents, powers of attorney and other instruments) and to provide
reasonable assistance to the Company or any of its subsidiaries and affiliates
in connection with the prosecution of any applications for patents, trademarks,
trade names, service marks or reissues thereof or in the prosecution or defense
of interferences relating to any Work Product.
COVENANT NOT TO COMPETE. Employee acknowledges that his employment with the
Company has special, unique and extraordinary value to the Company; that the
Company has a lawful interest in protecting its investment in entrusting its
Confidential Information to him; and that the Company would be irreparably
damaged if Employee were to provide services to any person or entity in
violation of this Employment Agreement because in performing such services
Employee would inevitably disclose the Company's Confidential Information to
third parties and that the restrictions, prohibitions and other provision of
this Section are reasonable, fair and equitable in scope, terms, and duration to
protect the legitimate business interests of the Company, and are a material
inducement to the Company to enter into this Employment Agreement.
1. Non-Competition. Without the consent in writing of the Board, Employee
will not, during the Employment Agreement and, in the event of the
termination of Employee's employment by the Company for Cause or by
Employee without Good Reason, for a period of two (2) years after such
termination of employment if employment is terminated by the Company
for Cause or by Employee without Good Reason, acting alone or in
conjunction with others, directly or indirectly engage (either as
owner, investor, partner, stockholder, employer, employee, consultant,
advisor or director) in activities on behalf of any entity or entities
engaged in waste processing and disposal services for low-level
radioactive-wastes, naturally occurring, accelerator produced, and
exempt radioactive materials, and hazardous and PCB wastes. It is
agreed that the ownership of not more than five percent of the equity
securities of any company having securities listed on an exchange or
regularly traded in the over-the-counter market shall not, of itself,
be deemed inconsistent with this sub-paragraph.
2. Non-Solicitation of Vendors and Customers. Without the consent in
writing of the Board, after Employee's employment has terminated for
any reason, Employee will not, during the Employment Agreement and for
a period of one (1) year thereafter (two (2) years thereafter if
employment is terminated by the Company for Cause or by Employee
without Good Reason), acting alone or in conjunction with others,
either directly or indirectly induce any vendors or customers of the
Company to curtail or cancel their business with the Company or any of
its subsidiaries.
3. Non-Solicitation of Employees. Without the consent in writing of the
Board, after Employee's employment has terminated for any reason,
Employee will not, during the Employment Agreement and for a period of
one (1) year thereafter, acting alone or in conjunction with others,
either directly or indirectly induce, or attempt to influence, any
employee of the Company or any of its subsidiaries to terminate
his/her employment.
The provisions of the Section entitled CONFIDENTIALITY hereof and subparagraphs
(1), (2), and (3) of this paragraph are separate and distinct commitments
independent of each of the other subparagraphs. Employee
acknowledges that the covenants and agreements which he has made in this
Employment Agreement are reasonable and are required for the reasonable
protection of the Company and its business. Employee agrees that the breach of
any covenant or agreement contained herein will result in irreparable injury to
the Company and that, in addition to all other remedies provided by law or in
equity with respect to the breach of any provision of this Employment Agreement,
the Company and its successors and assigns will be entitled to enforce the
specific performance by Employee of his obligations hereunder and to enjoin him
from engaging in any activity in violation hereof and that no claim by Employee
against the Company or its successors or assigns will constitute a defense or
bar to the specific enforcement of such obligations. Employee agrees that the
Company and any successor or assign shall be entitled to recover all costs of
enforcing any provision of this Employment Agreement, including, without
limitation, reasonable attorneys' fees and costs of litigation. In the event of
a breach by Employee of any covenant or agreement contained herein, the running
of the restrictive covenant periods (but not of Employee's obligations
hereunder) shall be tolled during the period of the continuance of any actual
breach or violation.
In addition, the Company may, at the sole discretion of the Board, cancel,
rescind, suspend, withhold or otherwise limit or restrict any unexpired,
unexercised stock options and any bonus payouts under the Company's Long-Term
Incentive Plan granted to Employee, whether vested or not, at any time if
Employee is not in compliance with all of the provisions of the Section entitled
CONFIDENTIALITY hereof and subparagraphs (1), (2), and (3) of the immediately
preceding paragraph. As a condition to the exercise of any stock option or the
receipt of any such bonus payout, Employee shall certify to the Company that he
is in compliance with the provisions set forth above. In the event that
Employee fails to comply with the provisions set forth above in the Section
entitled CONFIDENTIALITY hereof and subparagraphs (1), (2) and (3) prior to or
within 12 months after any exercise of a stock option or payment by the Company
with respect to any stock options or bonus payout, such exercise or payment may
be rescinded by the Company within 12 months thereafter. In the event of such
rescission, Employee shall pay to the Company the amount of any gain realized or
payment received as a result of the rescinded exercise or payment, in such
manner and on such terms and conditions as may be required by the Company, and
the Company shall be entitled to set-off against the amount of such gain any
amount owed to Employee by the Company. Employee acknowledges that the
foregoing provisions are fair, equitable and reasonable for the protection of
the Company's interests in a stable workforce and the time and expense the
Company has incurred to develop its business and its customer and vendor
relationships.
PRIOR EMPLOYMENT AGREEMENTS. Employee represents and warrants that Employee's
performance of all the terms of this Employment Agreement and as an employee of
the Company does not, and will not, breach any employment agreement, arrangement
or understanding or any agreement, arrangement or understanding to keep in
confidence proprietary information acquired by Employee in confidence or in
trust prior to Employee's employment by the Company. Employee has not entered
into, and shall not enter into, any agreement, arrangement or understanding,
either written or oral, which is in conflict with this Employment Agreement or
which would be violated by Employee entering into, or carrying out his
obligations under, this Employment Agreement. This Employment Agreement
supersedes any former oral agreement and any former written agreement heretofore
executed relating generally to the employment of Employee with the Company;
provided, however, that nothing in this Section shall be deemed to terminate,
supersede, extinguish or otherwise amend any outstanding stock options or stock
option agreements currently in effect between Employee and the Company.
SUCCESSORS. This Employment Agreement shall be binding on the Company and any
successor to any of its businesses or assets. Without limiting the effect of
the prior sentence, the Company shall use its best efforts to require any
successor or assign (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company to expressly assume and agree to perform this Employment
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession or assignment had taken place. As
used in this Employment Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor or assign to its business and/or assets
as aforesaid which assumes and agrees to perform this Employment Agreement or
which is otherwise obligated under this Employment Agreement by the first
sentence of this Section, entitled Successors, by operation of law or otherwise.
BINDING EFFECT. This Employment Agreement shall inure to the benefit of and be
enforceable by Employee's personal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If Employee should die
while any amounts would still be payable to him hereunder if he had continued to
live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Employment Agreement to Employee's estate.
HEADINGS. Headings used in this Employment Agreement are for convenience only
and shall not be used to interpret or construe its provisions.
WAIVER. No provision of this Employment Agreement may be waived or discharged
unless such waiver or discharge is agreed to in writing and signed by the
Chairman of the Board or any other member of the Board to which the Chairman
delegates such authority. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Employment Agreement to be performed by such other party shall
be deemed a waiver of similar or dissimilar provisions or conditions at the same
or at any prior or subsequent time.
AMENDMENTS. No amendments or variations of the terms and conditions of this
Employment Agreement shall be valid unless the same is in writing and signed by
the parties hereto.
SEVERABILITY. The invalidity or unenforceability of any provision of this
Employment Agreement, whether in whole or in part, shall not in any way affect
the validity and/or enforceability of any other provision contained herein. Any
invalid or unenforceable provision shall be deemed severable to the extent of
any such invalidity or unenforceability. It is expressly understood and agreed
that while the Company and Employee consider the restrictions contained in this
Employment Agreement reasonable for the purpose of preserving for the Company
the good will, other proprietary rights and intangible business value of the
Company, if a final judicial determination is made by a court having
jurisdiction that the time or territory or any other restriction contained in
this Employment Agreement is an unreasonable or otherwise unenforceable
restriction against Employee, the provisions of such clause shall not be
rendered void but shall be deemed amended to apply as to maximum time and
territory and to such other extent as such court may judicially determine or
indicate to be reasonable.
GOVERNING LAW. This Employment Agreement shall be construed and enforced
pursuant to the laws of the State of Idaho.
DISPUTE RESOLUTION.
1. The Company and Employee agree to resolve all disputes arising out of
their employment relationship by the following alternative dispute
resolution process: (a) the Company and Employee agree to seek a fair and
prompt negotiated resolution; but if this is not possible, (b) all disputes
shall be resolved by binding arbitration; provided, that during this
process, at the request of either party, made not later than 60 days after
the initial arbitration demand, the parties agree to attempt to resolve any
dispute by non-binding, third-party intervention, including either
mediation or evaluation or both but without delaying the arbitration
hearing date. By entering into this Employment Agreement, both parties give
up their right to have the dispute decided in court by a judge or jury.
2. Any controversy or claim arising out of or connected with Employee's
employment at the Company, including but not limited to claims for
compensation or severance and claims of wrongful termination, age, sex or
other discrimination or civil rights shall be decided by arbitration. In
the event the parties cannot agree on an arbitrator, then the arbitrator
shall be selected by the administrator of the American Arbitration
Association ("AAA") office in Salt Lake City, Utah. The arbitrator shall be
an attorney with at least 15 years' experience in employment law in Idaho.
Boise, Idaho shall be the site of the arbitration. All statutes of
limitation, which would otherwise be applicable, shall apply to any
arbitration proceeding hereunder. Any issue about whether a controversy or
claim is covered by this Employment Agreement shall be determined by the
arbitrator.
3. The arbitration shall be conducted in accordance with this Employment
Agreement, using as appropriate the AAA Employment Dispute Resolution Rules
in effect on the date hereof. The arbitrator shall not be bound by the
rules of evidence or of civil procedure, but rather may consider such
writings and oral presentations as reasonable business people would use in
the conduct of their day-to-day affairs, and may require both parties to
submit some or all of their respective cases by written declaration or such
other manner of presentation as the arbitrator may determine to be
appropriate. The parties agree to limit live testimony and
cross-examination to the extent necessary to ensure a fair hearing on
material issues.
4. The arbitrator shall take such steps as may be necessary to hold a
private hearing within 120 days of the initial request for arbitration and
to conclude the hearing within two days; and the arbitrator's written
decision shall be made not later than 14 calendar days after the hearing.
The parties agree that they have included these time limits in order to
expedite the proceeding, but they are not jurisdictional, and the
arbitrator may for good cause allow reasonable extensions or delays, which
shall not affect the validity of the award. Both written discovery and
depositions shall be allowed. The extent of such discovery will be
determined by the parties and any disagreements concerning the scope and
extent of discovery shall be resolved by the arbitrator. The written
decision shall contain a brief statement of the claim (s) determined and
the award made on each claim. In making the decision and award, the
arbitrator shall apply applicable substantive law. The arbitrator may award
injunctive relief or any other remedy available from a judge, including
consolidation of this arbitration with any other involving common issues of
law or fact which may promote judicial economy, and may award attorneys'
fees and costs to the prevailing party, but shall not have the power to
award punitive or exemplary damages. The parties specifically state that
the agreement to limit damages was agreed to by the parties after
negotiations.
ATTORNEY FEES.
1. In any action at law or in equity to enforce any of the provisions or
rights under this Employment Agreement, the unsuccessful party to such
litigation, as determined by the arbitrator in accordance with the dispute
resolution provisions set forth above, shall pay the successful party or
parties all costs, expenses and reasonable attorneys' fees incurred therein
by such party or parties (including, without limitation, such costs,
expenses and fees on appeal), and if such successful party or parties shall
recover judgment in any such action or proceeding, such costs, expenses and
attorneys' fees shall be included as part of such judgment.
2. Notwithstanding the foregoing provision, in no event shall the
successful party or parties be entitled to recover an amount from the
unsuccessful party for costs, expenses and attorneys' fees that exceeds the
unsuccessful party's or parties' costs, expenses and attorneys' fees in
connection with the action or proceeding.
EXECUTIVE OFFICER STATUS. Employee acknowledges that he may be deemed to be an
"executive officer" of the Company for purposes of the Securities Act of 1993,
as amended (the "1933 Act"), and the Securities Exchange Act of 1934, as amended
(the "1934 Act") and, if so, he shall comply in all respects with all the rules
and regulations under the 1933 Act and the 1934 Act applicable to him in a
timely and non-delinquent manner. In order to assist the Company in complying
with its obligations under the 1933 Act and 1934 Act, Employee shall provide to
the Company such information about Employee as the Company shall reasonably
request including, but not limited to, information relating to personal history
and stockholdings. Employee shall report to the Secretary of the Company or
other designated officer of the Company all changes in beneficial ownership of
any shares of the Company's Common Stock deemed to be beneficially owned by
Employee and/or any members of Employee's immediate family. Employee further
agrees to comply with all requirements placed on him by the Sarbanes-Oxley Act
of 2002, Pub.L. No.107-204
PRONOUNS. All pronouns and any variations thereof shall be deemed to refer to
the masculine, feminine, neuter, singular, or plural, as the identity of the
person or entity may require. As used in this agreement: (1)
words of the masculine gender shall mean and include corresponding neuter words
or words of the feminine gender, (2) words in the singular shall mean and
include the plural and vice versa, and (3) the word "may" gives sole discretion
without any obligation to take any action.
COUNTERPARTS. This Employment Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute but one document.
EXHIBITS. Any Exhibits attached hereto are incorporated herein by reference and
are an integral part of this Employment Agreement.
IN WITNESS WHEREOF, this Employment Agreement has been duly executed by the
Company and Employee as of the date first above written.
EMPLOYEE:
----------------------------------
AMERICAN ECOLOGY CORPORATION
By:
-------------------------------
Name:
-----------------------------
Its:
------------------------------
BENEFICIARY DESIGNATION FORM
I hereby designate the following person or persons as Beneficiary to receive
severance and any management incentive bonus payments due under the attached
Employment Agreement made and entered into as of the _____________ day of
January, 2003, between American Ecology Corporation and me, in the event of my
death, reserving the full right to revoke or modify this designation, or any
modification thereof, at any time by a further written designation:
PRIMARY BENEFICIARY
- ------------------------------- ---------------------- --------------
Name of Individual Relationship to Me Birth Date
(if minor)
- --------------------------------------------------------------------------------
Address
- ----------------------------------------------- ----------------------
Name of Trust Date of Trust
- --------------------------------------------------------------------------------
Trustee
Provided, however, that if such Primary Beneficiary shall not survive me by at
least sixty (60) days, the following shall be the Beneficiary:
CONTINGENT BENEFICIARY
- ------------------------------- ---------------------- --------------
Name of Individual Relationship to Me Birth Date
(if minor)
- --------------------------------------------------------------------------------
Address
- ------------------------------- ---------------------- --------------
Name of Individual Relationship to Me Birth Date
(if minor)
- --------------------------------------------------------------------------------
Address
This beneficiary designation shall not affect any other beneficiary designation
form that I may have on file with the Company regarding benefits other than
those referred to above.
Date:
----------------------
- --------------------------------- ------------------------------------
Employee's Printed Name Employee's Signature
NOTE: If Employee is married, and the Primary Beneficiary is other than
Employee's spouse, the spouse's signature shall be required below.
I am the spouse of the above-named Employee, and hereby consent to the
designation of a Primary Beneficiary other than myself.
Date:
---------------------