EXHIBIT 10.58 FORM OF STOCK OPTION AGREEMENT
THE FOLLOWING OPTIONS WERE OFFERED TO THE BELOW NAMED KEY EMPLOYEES ON FEBRUARY
11, 2003:
EXERCISE PRICE STEPHEN ANTHONY JAMES RANDALL JOHN SCOTT MICHAEL JAMES
ROMANO BAUMGARDNER NICHOLSON GILBERG
3.00 131,868 52,747 52,747 32,967
4.50 153,846 61,538 61,538 38,462
6.50 84,396 33,758 33,758 21,099
AMERICAN ECOLOGY CORPORATION
STOCK OPTION AGREEMENT
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Effective this 11th day of February, 2003, American Ecology Corporation, a
Delaware corporation (the "Company"), hereby grants to _________________ (the
"Optionee") a stock option (the "Option") to purchase from the Company, that
number of shares of the Company's authorized and unissued common stock, $0.01
par value per share (the "Common Stock"), at the exercise price(s) set forth on
Schedule 1 and upon the terms and conditions set forth in this Stock Option
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Agreement (the "Agreement"):
1. STOCK OPTION PLAN. This Agreement and the Option granted herein are
made and accepted pursuant to and in accordance with the Company's Amended and
Restated 1992 Stock Option Plan (the "Plan") as amended from time to time. The
terms and provisions of the Plan, and any amendments thereto, are incorporated
herein by reference. In the event of any conflict between the provisions of
this Agreement and the provisions of the Plan, the provisions of the Plan will
prevail.
2. TERM AND VESTING. The Option will vest in four installments over
three years: 25% upon the date hereof, and 25% on each of the first three
anniversaries of the date hereof.
3. EXERCISABILITY.
(a) The Option granted herein may be exercised in whole or in
part, to the extent then vested and subject to earlier termination as provided
herein, continuing to a date 10 years subsequent to the date hereof (the
"Expiration Date"). In the event the Option is exercised in full or in part
prior to a Change of Control of the Company, the Optionee agrees, as a condition
to such exercise, that he will retain 75% of the "after-tax" shares received
from any such exercise for a period of two years from the date of such exercise;
provided, that such retention obligation shall terminate and no longer apply
upon a Change of Control or termination of employment without Cause or
resignation for Good Reason (as defined in the Employment Agreement). Failure
to comply with this provision will result in the Optionee's forfeiture of the
unvested portion of the Option and ineligibility to participate in the Company's
incentive programs.
(b) In the event of the Optionee's death, Disability (as defined
in that certain Executive Employment Agreement made and entered into as of the
first day of January, 2003 (the "Employment Agreement")) or termination without
Cause or resignation for Good Reason (each as defined in the Employment
Agreement), the next 25% tranche of the Option will vest, and the vested portion
of such Option will stay outstanding and remain exercisable until 30 days after
termination of employment (one year, if termination is due to death).
(c) The Option will fully vest on a Change of Control of the
Company (as defined in the Employment Agreement) and will stay outstanding and
remain exercisable until 30 days after termination of employment (one year, if
termination is due to death).
(d) Except in the event of termination of the Optionee's
employment after a Change of Control or due to death, Disability or termination
without Cause, the Option will expire upon termination of the Optionee's
employment. In such event, to the extent not exercised by the Optionee prior to
termination of his employment, the Option will be canceled.
4. TRANSFERABILITY. The Option granted under this Agreement is not
transferable otherwise than by will or operation of laws of descent and
distribution or pursuant to a qualified domestic relations order as defined in
the Internal Revenue Code of 1986, as amended, or Title I of the Employee
Retirement Income Security Act, or the rules thereunder. During the lifetime of
the Optionee, the Option granted in this Agreement shall be exercisable only by
the Optionee, the Optionee's guardian or legal representative.
5. METHOD OF EXERCISE. Any exercise of the Option granted herein shall
be by written notice delivered by the Optionee to the Company. Once the Company
has received written notice of an exercise of the Option, the Company shall
issue the shares covered by any such notice to the Optionee as soon as
practicable after receipt of such notice. Such shares of Common Stock shall be
delivered to the Optionee against payment therefore in accordance with the Plan.
All federal and state stock transfer, issuance and sales taxes relating to the
sale of said Common Stock of the Company to the Optionee shall be borne and paid
by the Optionee.
6. CONFIDENTIAL INFORMATION.
(a) The Optionee 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 the Optionee or breach of this Agreement. The
Optionee 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, the Optionee acknowledges that
all Confidential Information which the Optionee now possesses, or shall
hereafter acquire, concerning and pertaining to the business and secrets of the
Company
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and all inventions or discoveries made or developed, or suggested by or to the
Optionee 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 the Optionee
in his fiduciary capacity and solely for the benefit of Company.
(b) The Optionee 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 the
Optionee (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. The Optionee 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.
7. RESTRICTIVE COVENANTS GENERALLY. The Optionee 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 (as defined in Paragraph 7) to him; and
that the Company would be irreparably damaged if the Optionee were to provide
services to any person or entity in violation of this Agreement because in
performing such services the Optionee 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 Agreement.
8. NON-COMPETITION. Without the consent in writing of the Board of
Directors of the Company (the "Board"), the Optionee will not, during his
employment with the Company and for a period of two years thereafter, if
employment is terminated by the Company for Cause or by the Optionee without
Good Reason (each as defined in the Employment Agreement), 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 Paragraph 8.
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9. NON-SOLICITATION.
(a) Without the consent in writing of the Board, after the
Optionee's employment has terminated for any reason, the Optionee will not,
during his employment with the Company and for a period of one year thereafter,
(two years if employment is terminated by the Company for Cause or by the
Optionee without Good Reason (each as defined in the Employment Agreement)),
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.
(b) Without the consent in writing of the Board, after the
Optionee's employment has terminated for any reason, the Optionee will not,
during his employment with the Company and for a period of one 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 employment.
10. REMEDIES.
(a) The provisions of Paragraphs 6-9 of this Agreement are
separate and distinct commitments independent of each of the Paragraphs. The
Optionee acknowledges that the covenants and agreements which he has made in
this Agreement are reasonable and are required for the reasonable protection of
the Company and its business. The Optionee 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 Agreement, the Company and
its successors and assigns will be entitled to enforce the specific performance
by the Optionee of his obligations hereunder and to enjoin him from engaging in
any activity in violation hereof and that no claim by the Optionee against the
Company or its successors or assigns will constitute a defense or bar to the
specific enforcement of such obligations. The Optionee agrees that the Company
and any successor or assign shall be entitled to recover all costs of enforcing
any provision of this Agreement, including, without limitation, reasonable
attorneys' fees and costs of litigation. In the event of a breach by the
Optionee of any covenant or agreement contained herein, the running of the
restrictive covenant periods (but not of the Optionee's obligations hereunder)
shall be tolled during the period of the continuance of any actual breach or
violation.
(b) The parties hereto agree that the covenants set forth in
Paragraphs 6-9 are reasonable with respect to their duration, geographical area
and scope. If the final judgment of a court of competent jurisdiction declares
that any term or provision of Paragraph 6, 7, 8 or 9 is invalid or
unenforceable, the parties agree that the court making the determination of
invalidity or unenforceability shall have the power to reduce the scope,
duration, or area of the term or provision, to delete specific words or phrases,
or to replace any invalid or unenforceable term or provision with a term or
provision that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision, and this Agreement
shall be enforceable as so modified after the expiration of the time within
which the judgment may be appealed.
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(c) In addition, the Company may, at the sole discretion of the
Board, cancel, rescind, suspend, withhold or otherwise limit or restrict the
Option to the extent it is unexpired, and unexercised, whether vested or not, at
any time if the Optionee in not in compliance with all of the provisions of
Paragraphs 6-9. As a condition to the exercise of any part of the Option, the
Optionee shall certify to the Company that he is in compliance with the
provisions set forth above. In the event that the Optionee fails to comply with
the provisions set forth above in Paragraphs 6-9 prior to or within 12 months
after any exercise of any part of the Option or payment by the Company with
respect to the Option, such exercise or payment may be rescinded by the Company
within 12 months thereafter. In the event of such rescission, the Optionee
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 the
Optionee by the Company. The Optionee 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.
11. SUCCESSORS OF COMPANY AND OPTIONEE. This Agreement shall inure to
the benefit of and be binding upon the Company and the Optionee and their
respective heirs, legal representatives, successors and assigns, subject to the
restrictions on assignability and transferability set forth herein.
12. ADJUSTMENTS. The number of shares of Common Stock and prices per
share contained herein shall be proportionately adjusted from time to time as
and when provided in the Plan.
IN WITNESS WHEREOF, this Agreement has been executed effective the 10th day
of February, 2003.
AMERICAN ECOLOGY CORPORATION
By:
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Name:
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Its:
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OPTIONEE
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Name:
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Address:
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SS#:
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Schedule 1
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NUMBER OF SHARES EXERCISE PRICE
___________ $3.00
___________ $4.50
___________ $6.50
For purposes of vesting and whenever applicable in this Agreement, each
tranche of stock options (a tranche shall consist only of the shares which have
the same exercise price) shall be treated as separate Options. For example, 25%
of the Options with an exercise price of $3.00, 25% of the Options with an
exercise price of $4.50 and 25% of the Options with an exercise price of $6.50
will vest on the date hereof and on each of the first three anniversaries of the
date hereof.