usecology_10q-033110.htm

Except as required by applicable law, including the securities laws of the United States and the rules and regulations of the SEC, we are under no obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise. You should not place undue reliance on our forward-looking statements. Although we believe that the expectations reflected in forward-looking statements are reasonable, we cannot guarantee future results or performance. Before you invest in our common stock, you should be aware that the occurrence of the events described in the "Risk Factors" section in our 2009 Annual Report on Form 10-K filed with the SEC on March 4, 2010 could harm our business, prospects, operating results, and financial condition.

Investors should also be aware that while we do, from time to time, communicate with securities analysts, it is against our policy to disclose to them any material non-public information or other confidential commercial information. Accordingly, stockholders should not assume that we agree with any statement or report issued by any analyst irrespective of the content of the statement or report. Furthermore, we have a policy against issuing or confirming financial forecasts or projections issued by others. Thus, to the extent that reports issued by securities analysts contain any projections, forecasts or opinions, such reports are not the responsibility of US Ecology, Inc.

Item 1. Legal Proceedings

In March 2010, we received a proposed settlement offer from the U.S. Environmental Protection Agency (“EPA”) for approximately $900,000 relating to alleged non-compliance with certain regulations at our Beatty, Nevada facility dating back to 2005. The EPA has alleged, among other things, that air emissions on our now discontinued permitted hazardous waste thermal operations should have been monitored continuously as opposed to periodic monitoring. In addition, the EPA has alleged that residual amounts of PCBs had been released without formal notice to the EPA or the State of Nevada’s Department of Environmental Protection all within the confines of our secure hazardous waste/PCB facility. We do not believe the alleged non-compliance represented a threat to human health or the environ ment. In response to the EPA’s proposal we counter-offered to settle the matter for $423,000. We believe our counter-offer to settle the alleged matter is credible and has a strong basis in both the regulations and facts of the matter. Negotiations are ongoing with the EPA, which has neither accepted nor rejected our counter-offer. Based on our counter-offer, we recognized a charge of $423,000 during the first quarter of 2010 in Selling, general and administrative expenses in the Consolidated Statement of Operations related to this matter. However, at this time we are unable to predict the timing and final outcome of this matter.

Other than as disclosed above, we are not currently a party to any material pending legal proceedings and are not aware of any other claims that could have a materially adverse effect on our financial position, results of operations or cash flows.

Item 1A. Risk Factors

There have been no material changes in our risk factors from those disclosed in Item 1A of Part I of our Annual Report on Form 10-K for the fiscal year ended December 31, 2009.

Item 2. Unregistered Sales of Equity Securities and Use of Proceeds

None.

Item 3. Defaults Upon Senior Securities

None.

Item 4. Removed and Reserved

Item 5. Other Information

None.

Item 6. Exhibits

	10.57	*Management Incentive Plan Effective January 1, 2010

	10.58	Consulting Services Agreement, effective as of January 1, 2010, between the Company and Stephen A. Romano

	10.71	Employment Agreement, effective as of January 1, 2010, between the Company and James R. Baumgardner *

	10.72	*Employment Agreement, effective as of January 1, 2010, between the Company and Simon Bell

	10.73	*Employment Agreement, effective as of January 1, 2010, between the Company and John Cooper

	10.74	*Employment Agreement, effective as of January 1, 2010, between the Company and Jeff Feeler

	10.75	*Employment Agreement, effective as of January 1, 2010, between the Company and Eric Gerratt

	10.76	*Employment Agreement, effective as of January 1, 2010, between the Company and Steven D. Welling

	15	Letter re: Unaudited Interim Financial Statements

	31.1	Certification of CEO Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

	31.2	Certification of CFO Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

	32	Certification Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

	* Identifies management contracts or compensatory plans or arrangements required to be filed as an exhibit hereto.

	** Certain portions of the exhibit have been omitted pursuant to a confidential treatment request submitted to the SEC

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

	US Ecology, Inc.
	(Registrant)


Date: April 30, 2010	/s/ Jeffrey R. Feeler
	Jeffrey R. Feeler Vice President and Chief Financial Officer

EX-10.57 2 usecology_10q-ex1057.htm MANAGEMENT INCENTIVE PLAN usecology_10q-ex1057.htm

EXHIBIT 10.57

AMERICAN ECOLOGY CORPORATION

2010 Executive Management Incentive Plan

1.	Purpose of the Plan

The purpose of the American Ecology Corporation 2010 Executive Management Incentive Plan (“Plan” or “MIP”) is to provide key executive management employees, for the 2010 fiscal year, with incentive compensation consistent with the interests of American Ecology Corporation stockholders.

2.	Eligibility

Eligibility in the Plan is limited to Board approved and designated executive management employees of the Company and its subsidiaries (the “Company”). For purposes of the Plan, the Compensation Committee of the Company’s Board of Directors is the Plan Administrator.

A listing of employees approved by the Board of Directors (“Participants”) with their respective Initial Base Percentage (“IBP”) and Excess Percentage (“EP”) shall be maintained and administered by the Chief Financial Officer (“CFO”) under the direction of the Plan Administrator and is attached as Exhibit A. Participation in the Plan supersedes any prior agreements relating to the subject matter hereof, either written or verbal.

Except in the event of the Participant’s death, to be eligible for the maximum incentive award (a “Bonus Award”) under the Plan, a Participant must have been employed on a full-time basis by the Company for the entire 12 months of 2010 (the “Performance Period”) and must be employed on the last day of the Performance Period and at the date of such payment. Plan Participants whose employment with the Company began during the Performance Period may be eligible for a Bonus Award on a pro rata basis. Plan Participants whose employment with the Company has been terminated, for any reason whatsoever (except for death), prior to the payment of any Bonus Award, shall not be eligible to receive any payment hereunder.

3.	Participant Groups

The Plan provides for four Participant categories in 2010.

President and Chief Executive Officer (“CEO”) - Fifty percent (50%) of the Bonus Award shall be based on the Company achieving operating income objectives, taking into account the cost of such Bonus Award. Up to an additional fifty percent (50%) shall be awarded, with the approval of the Board of Directors, for achieving annual priorities, updating and implementing Company initiatives and out year strategic plans, and implementing processes to ensure tracking and achievement of Board-adopted objectives.

Corporate Officer – Senior Vice President of Sales and Marketing - Fifty percent (50%) of the Bonus Award shall be based on the Company achieving operating income objectives, taking into account the cost of such Bonus Award. Up to an additional fifty percent (50%) shall be awarded, at the discretion of the CEO, for driving the overall sales and marketing effort to meet established territory targets, protecting existing business, team work, business development assessment, market development planning for out year growth and other evaluative factors.

C)	Corporate Officers - This category includes the four Corporate Vice Presidents and their Bonus Awards shall be based on the following criteria:

Vice President and Chief Financial Officer (“CFO”). Fifty percent (50%) of the Bonus Awards shall be based on the Company achieving operating income objectives, taking into account the cost of such Bonus Awards. Up to an additional fifty percent (50%) shall be awarded, at the discretion of the CEO, for compliance with federal securities regulations including financial reporting requirements and compliance and internal control requirements, investor relations, business development and financing initiatives, development of out year capital structure and finance plans, team work, and other evaluative factors.

ii.

Vice President of Operations. Fifty percent (50%) of the Bonus Award shall be based on the Company achieving operating income objectives, taking into account the cost of such Bonus Awards. Up to an additional fifty percent (50%) shall be awarded, at the discretion of the CEO for management of site efforts to achieve annual priorities, management of Company resources and completion of approved capital projects within budget and on schedule, effective management of health and safety programs, transportations arrangements, teamwork, and development of out-year plans for operating facility permit expansions and investments in operating facility plant and equipment.

iii.

Vice President and Chief Information Officer. Fifty percent (50%) of the Bonus Award shall be based on the Company achieving operating income objectives, taking into account the cost of such Bonus Awards. Up to an additional fifty percent (50%) shall be awarded, at the discretion of the CFO, for achieving priorities for support on potential acquisitions, new information systems development and implementation, servicing ongoing Information Technology needs, developing out year information system and technology plans to support strategic plans, teamwork, support for the Company’s operating facilities and other evaluative factors.

iv.

Vice President and Controller. Fifty percent (50%) of the Bonus Award shall be based on the Company achieving operating income objectives, taking into account the cost of such Bonus Awards. Up to an additional fifty percent (50%) shall be awarded, at the discretion of the CFO, for compliance with federal securities regulations including financial reporting requirements and compliance, internal control requirements, financing initiatives, acquisition integration, team work and other evaluative factors.

Bonus Awards

A)	Cash award at target performance:

i.	CEO: Seventy-five percent (75%) of Participant’s base salary.

ii.	Senior Vice President of Sales and Marketing: Fifty percent (50%) of Participant’s base salary.

iii.	CFO and Vice President of Operations: Forty percent (40%) of Participant’s base salary.

iv.	Vice President, Controller and Vice President Chief Information Officer: Thirty five percent (35%) of Participant’s base salary.

B)	Additional cash award:

i.	In the event the Company exceeds the target performance goal, the CEO will be eligible for an additional bonus payment calculated by multiplying his base salary by 2.5% for every 1% increase over the target performance goal.

ii.

In the event the Company exceeds the target performance goal, the CFO, Vice President of Operations, Vice President and Chief Information Office, Vice President and Controller, and Senior Vice President of Sales and Marketing will be eligible for an additional bonus payment calculated by multiplying their respective salaries by 1% for every 1% increase over the target performance goal.

Any and all Bonus Awards shall be based on the availability of the Company’s final audited financial statements for the Performance Period, prepared in accordance with generally accepted accounting principles. For purposes of the Plan, “Operating Income” is defined as Gross Profit less Selling, General and Administrative Expenses after any accrual for Bonus Awards.

The Company shall pay Bonus Awards, if any, to Plan Participants upon certification by the CEO and/or CFO that such payments are authorized by the Plan Administrator and all applicable criteria contained herein have been met. All Bonus Award payments shall be made within a reasonable time after approval and availability of the Company’s final audited financial statements for the Performance period.

Procedure

The Plan Administrator shall have full power, discretion and authority to administer and interpret the Plan, including the calculation and verification of all Bonus Awards, and to establish rules and procedures for its administration, as the Plan Administrator deems necessary and appropriate. Any interpretation of the plan or other act of the Plan Administrator in administering the Plan shall be final and binding on all Plan Participants. No member of the Plan Administrator or the Board of Directors shall be liable for any action, interpretation or construction made in good faith with respect to the Plan. No member of the Plan Administrator shall participate in the Plan. The Company shall indemnify, to the fullest extent permitted by law, each member of the Board who becomes liable in any civil action or proceeding with respect to decisions made relating to the Plan. The CEO shall provide the Plan Administrator with a year-end report of Participants in the Plan and their respective annual salaries and recommendations for evaluative factor Bonus Awards for all participants other than himself, along with any other information that the Plan Administrator may request. The Plan Administrator shall determine any evaluative factor Bonus Award for the CEO.

A Plan Participant may be removed from the Plan, with no right to any Bonus Award under the Plan, if it is determined in the discretion of the Plan Administrator that any of the following have occurred:

A)	Insubordination, misconduct, malfeasance, or any formal disciplinary action taken by the Company during the performance year or prior to payment.

B)	Disability. Should a Participant not be actively at work for an extended period of time due to an illness or injury, in such a way as to qualify for long-term disability benefits, he/she may not receive a bonus.

Demotion. If a Plan Participant is removed from the Participant group that made him or her an eligible Participant under the Plan at any time during the Performance Period, then such employee shall be deemed to be ineligible for participation in the Plan and shall not receive any Bonus Award under the Plan.

5.	Miscellaneous Provisions.

Employment Rights. The Plan does not constitute a contract of employment and participation in the Plan will not give a Participant the right to continue in the employ of the Company on a full-time, part-time or other basis or alter their at-will employment status. Participation in the Plan will not give any Participant any right or claim to any benefit under the Plan, unless such right or claim has specifically been granted by the Plan Administrator under the terms of the Plan.

B)	Plan Administrator’s Final Decision. Any interpretation of the Plan and any decision on any matter pertaining to the Plan that is made by the Plan Administrator in its discretion in good faith shall be binding on all persons.

C)	Governing Law. Except to the extent superseded by the laws of the United States, the laws of the State of Idaho, without regard to its conflicts of laws principles, shall govern in all matters relating to the Plan.

Interests Not Transferable. Any interest of a Participant under the Plan may not be voluntarily sold, transferred, alienated, assigned or encumbered, other than by will or pursuant to the laws of descent and distribution. Notwithstanding the foregoing, if a Plan Participant dies during the Performance Period, or prior to payment of the Bonus Award, then a pro rata portion of the Bonus Award that would otherwise be paid to such deceased Participant if such Participant were to remain in the active employment of the Company until the date of Payment of such Bonus Award shall be paid to the deceased Participant’s beneficiary, as designated in writing by such Participant; provided however, that if the deceased Participant has not designated a beneficiary then such amount shall be payable to the deceased Participant’s estate. Payment to a Participant’s estate or beneficiary pursuant to this Section 5(d) shall be made in 2010.

Severability. In the event any provision of the Plan shall be held to be illegal or invalid for any reason, such illegality or invalidity shall not affect the remaining parts of the Plan, and the Plan shall be construed and enforced as if such illegal or invalid provisions had never been contained in the Plan.

Withholding. The Company will withhold from any amounts payable under the Plan applicable withholding including federal, state, city and local taxes, FICA and Medicare as shall be legally required. Additionally, the Company will withhold from any amounts payable under the Plan, the applicable contribution for the Participant’s 401(k) Savings and Retirement Plan as defined in the 401(K) Plan description protected under ERISA.

G)	Effect on Other Plans or Agreements. Payments or benefits provided to a Plan Participant under any stock, deferred compensation, savings, retirements or other employee benefit plan are governed solely by the terms of each of such plans.

Effective Date

This Plan is effective as of January 1, 2010.

EXHIBIT A

AMERICAN ECOLOGY CORPORATION

2010 Executive Management Incentive Plan

ELIGIBLE PARTICIPANTS

James R. Baumgardner – President and CEO - IBP – 75%, EP – 2.5%

Steve D. Welling – Senior Vice President, Sales and Marketing – IBP – 50%, EP – 1%

Jeffrey R. Feeler –CFO – IBP – 40%, EP – 1%

Simon G. Bell – Vice President of Operations – IBP – 40%, EP – 1%

John M. Cooper – Vice President and Chief Information Officer – IBP – 35%, EP – 1%

Eric L. Gerratt – Vice President and Controller – IBP – 35%, EP – 1%

BENEFICIARY DESIGNATION FORM

I hereby designate the following person or persons as Beneficiary to receive any management incentive bonus payments due under the 2010 Executive Management Incentive Plan, effective January 1, 2010, 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

This beneficiary designation shall not affect any other beneficiary designation form that I may have on file with the Company regarding benefits other than that referred to above.


Date



Name

Signature

EX-10.58 3 usecology_10q-ex1058.htm CONSULTING SERVICES AGREEMENT usecology_10q-ex1058.htm

EXHIBIT 10.58

AMERICAN ECOLOGY CORPORATION

CONSULTING SERVICES AND DIRECTOR COMPENSATION AGREEMENT

This Agreement (“Agreement”) is made and entered into as of the 1st day of January, 2010 (the “Agreement Date”), by and between American Ecology Corporation, a Delaware corporation (the “Company”), and Stephen A. Romano, an Idaho resident (“Romano”). The Company and Romano are sometimes collectively referred to in this Agreement as the “Parties,” and individually, as a “Party.”

Whereas, Romano (i) has served as the Chief Executive Officer of the Company, a position from which he resigned effective December 31, 2009, and (ii) currently serves as the Chairman of the Board of Directors of the Company; and

Whereas, the Parties desire to set forth the terms and conditions pursuant to which Romano will continue to provide services to the Company following his retirement as an employee and executive officer of the Company.

Now, Therefore, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

Section 1. Engagement. The Company hereby engages Romano to perform the services described in Exhibit A attached hereto and incorporated herein by reference (the “Services”), and such other services as may be agreed to in writing by the Company and Romano from time to time. Romano hereby accepts the engagement to provide the Services to the Company on the terms and conditions set forth in this Agreement and in Exhibit A hereto.

Section 2. Compensation.

2.1 Compensation. In consideration of the Services to be performed by Romano, the Company agrees to pay Romano in the manner and in the amounts set forth in Exhibit A. The Chief Financial Officer of the Company (the “CFO”) shall provide a quarterly report to the Board of Directors regarding the retainer payments and expense reimbursements for Romano’s Services.

2.2 Expenses. Reasonable and prudent out-of-pocket expenses incurred by Romano as required to perform the Services set forth in Exhibit A shall be reimbursed by the Company to Romano. Such reimbursement shall be made in accordance with policies adopted by the Company from time to time, including, without limitation, the submission of expense reports with original receipts for such expenses to the CFO.

Section 3. Board of Director Matters.

3.1 Director Compensation. If elected by the stockholders of the Company to the Board of Directors at each annual meeting of stockholders at which his name is placed in nomination, Romano shall receive usual and customary Board of Director fees applicable to other members of the Board, which currently includes an annual director fee of $16,000 in cash, and an annual director equity grant of $25,000 payable in stock options or restricted stock, at the director’s option (the “Director Fee”), in each case payable in accordance with the Company’s normal practices and procedures; provided, however, that for the partial year running from the Agreement Date to the Board of Director’s meeting in May 2010, Romano shall receive a pro rata portion of the Director Fee, which Romano and the Company agree shall be the amount of $5,333.33 in cash, and an equity grant of $8,333.33; provided, further, that nothing in this Agreement shall be deemed to prevent or restrict the right of the Company to change the Board of Director compensation from time to time, or to terminate such compensation, in its sole discretion.

3.2 Non-Executive Chairman of the Board Compensation. If elected by the other members of the Board of Directors to serve as Chairman of the Board, Romano shall receive an annual Chairman’s fee in the amount of $20,000, in addition to the compensation described in Section 3.1 above (the “Chairman’s Fee”), payable in accordance with the Company’s normal practices and procedures; provided, however, that for the partial year running from the Agreement Date to the Board of Director’s meeting in May 2010, Romano shall receive a pro rata portion of the Chairman’s Fee, which Romano and the Company agree shall be $6,666.66; and provided, further, that nothing in this Agreement shall be deemed to prevent or restrict the right of the Company to change such compensation applicable to the non-executive Chairman of the Board from time to time, or to terminate such compensation, in its sole discretion.

3.3 Stock Ownership Requirement. Notwithstanding anything in Section 3.2 or otherwise in this Agreement to the contrary, Romano shall be required to beneficially own of record at least 50,000 shares of the Company’s common stock so long as he serves as Chairman of the Board of Directors of the Company.

3.4 No Guaranty of Service. Nothing in this Agreement shall be deemed to guaranty Romano a seat on the Board of Directors of the Company or to guarantee his nomination to election to the Board of Directors, or as conferring any right to serve as Chairman of the Board of Directors of the Company.

Section 4. Confidentiality.

4.1 Definition. For purposes of this Agreement, the term “Confidential Information” means any Company proprietary information, technical data, trade secrets or know-how, including, but not limited to, research, product plans, products, services, services plans, customers, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information disclosed by the Company either directly or indirectly in writing, orally or by drawings or inspection of parts or equipment. Confidential Information does not include information that (i) has become publicly known and made generally available through no wrongful act of Romano or (ii) has been rightfully received by Romano from a third party who is authorized to make such disclosure.

4.2 Non-Use and Non-Disclosure. Romano will not, during or subsequent to the term of this Agreement, (i) use the Confidential Information for any purpose whatsoever other than the performance of the Services on behalf of the Company or (ii) disclose the Confidential Information to any third party. Romano agrees that all Confidential Information will remain the sole property of the Company. Romano also agrees to take all reasonable precautions to prevent any unauthorized disclosure of such Confidential Information.

4.3 Third Party Confidential Information. Romano recognizes that the Company has received and in the future will receive from third parties their confidential or proprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. Romano agrees that, during the term of this Agreement and thereafter, Romano owes the Company and such third parties a duty to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation or to use it except as necessary in carrying out the Services for the Company consistent with the Company’s agreement with such third party or parties.

4.4 Return of Materials. Upon the termination of this Agreement, Romano will deliver to the Company all of the Company’s Confidential Information that Romano may have in Romano’s possession or control.

Section 5. Ownership.

5.1 Assignment. Romano agrees that all copyrightable material, notes, records, drawings, designs, inventions, improvements, developments, discoveries and trade secrets conceived, discovered, developed or reduced to practice by Romano, solely or in collaboration with others, during the term of this Agreement that relate in any manner to the business or developing business operations of the Company that Romano is directed to undertake, investigate or experiment with, or that Romano becomes associated with in connection with work, investigation or experimentation in the Company’s line of business in performing the Services under this Agreement (collectively, “Inventions”), are and shall remain the sole property of the Company. In addition, any Inventions that constitute copyrightable subject matter shall be considered “works made for hire,” as that term is defined in the United States Copyright Act. Romano hereby irrevocably assigns fully to the Company all Inventions and any copyrights, patents, mask work rights or other intellectual property rights relating to all Inventions.

5.2 Further Assurances. Romano agrees to assist Company, or its designee, at the Company’s expense, in every proper way to secure the Company’s rights in Inventions and any copyrights, patents, mask work rights or other intellectual property rights relating to all Inventions in any and all countries, including the disclosure to the Company of all pertinent information and data with respect to all Inventions, the execution of all applications, specifications, oaths, assignments and all other instruments that the Company may deem necessary in order to apply for and obtain such rights and in order to assign and convey to the Company, its successors, assigns and nominees the sole and exclusive right, title and interest in and to all Inventions, and any copyrights, patents, mask work rights or other intellectual property rights relating to all Inventions. Romano also agrees that his obligation to execute or cause to be executed any such instrument or papers shall continue after the termination of this Agreement.

5.3 Pre-Existing Materials. Romano will not incorporate any invention, improvement, development, concept, discovery or other proprietary information owned by any third party into any Invention without Company’s prior written permission. If, in the course of Romano’s performance of Services for the Company, Romano incorporates into a Company product, process or machine, any prior invention owned by Romano or in which he has an interest, the Company is hereby granted and shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make, have made, modify, use and sell such prior invention as part of or in connection with such product, process or machine.

5.4 Attorney-in-Fact. Romano agrees that, if the Company is unable because of Romano’s unavailability, mental or physical incapacity, or for any other reason, to secure Romano’s signature for the purpose of applying for or pursuing any application for any United States or foreign patents or mask work or copyright registrations covering the Inventions assigned to the Company in Section 5.1, then Romano hereby designates and appoints the Company and its duly authorized officers and agents as Romano’s agent and attorney-in-fact, to act for and on Romano’s behalf to execute and file any such applications and to do all other lawfully permitted acts to further the prosecution and issuance of patents, copyright and mask work registrations with the same legal force and effect as if executed by Romano. The foregoing appointment is irrevocable and coupled with an interest, and shall survive the death of Romano.

5.5 Maintenance of Records. Romano agrees to keep and maintain adequate and current written records of any and all Inventions made by Romano (solely or jointly with others) for the Company. The records will be in the form of notes, sketches, drawings, and any other format that may be specified by the Company. The records will be available to and remain the sole property of the Company at all times.

Section 6. Covenant Not to Compete.

6.1 Acknowledgment of Romano. Romano acknowledges that his relationship 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 to him its Confidential Information; that the Company would be irreparably damaged if Romano were to provide services to any person or entity in violation of this Agreement, because in performing such services Romano would inevitably disclose the Company’s Confidential Information to third parties; and that the restrictions, prohibitions and other provision of this Section 6 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.

6.2 Non-Competition Covenant. Romano will not during the term of this 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 in North America engaged in waste processing, recycling and disposal services for low-level radioactive-wastes, naturally occurring, accelerator produced, and exempt radioactive materials, and hazardous and PCB wastes, the provision of thermal desorption technology services, and any other processes or services offered by the Company. It is agreed that the ownership of not more than five percent (5%) 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 Section 6.2.

6.3 Non-Solicitation of Vendors and Customers. Romano will not during the term of this 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.

6.3 Non-Solicitation of Employees. Romano will not during the term of this Agreement, 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 or her employment.

Section 7. Reports. Romano agrees that he will, from time to time during the term of this Agreement or any extension thereof, keep the Board of Directors advised as to his Services hereunder.

Section 8. Term and Termination.

8.1 Term. The term of this Agreement will begin on the date of this Agreement and will continue until the earlier of (i) December 31, 2012, or (ii) termination as provided in Section 8.2.

8.2 Termination. Romano’s engagement with the Company pursuant to this Agreement shall terminate:

(a) upon the mutual written agreement of the Company and Romano;

(b) upon expiration of the term of this Agreement as provided in Section 8.1;

(d) automatically upon notice for Cause (as defined below).

8.3 Definition. For purposes of this Agreement, “Cause” shall include (i) the conviction of, or guilty plea or plea of nolo contendere by, Romano with respect to any felony other than a traffic violation, or (ii) willful misfeasance, illegal, dishonest or negligent conduct which constitutes a breach of Romano’s covenants and obligations under this Agreement, or which involves improper use of funds or other assets of the Company.

8.4 Survival. Upon such termination, all rights and duties of the Company and Romano toward each other shall cease except:

(a) the Company shall pay, within 30 days after the effective date of termination, all amounts owing to Romano for Services prior to the termination date and related expenses, if any, in accordance with the provisions of Section 2 of this Agreement; and

(b) the following provisions shall survive termination of this Agreement: Section 4 (Confidentiality), Section 5 (Ownership), , Section 6 (Covenant not to Compete), Section 10 (Independent Contractor), and Section 12 (Arbitration and Equitable Relief).

8.5 Termination Obligations.

(a) Except as specifically provided otherwise in this Agreement, upon termination of this Agreement, neither Romano nor the Company shall have any further obligations under this Agreement, except as to liabilities accrued through the date of termination.

(b) Upon the termination of this Agreement and upon the Company’s request, Romano shall surrender to the Company all equipment, tangible Confidential Information, documents, books, notebooks, records, reports, notes, memoranda, drawings, sketches, models, maps, contracts, lists, computer disks (and other computer-generated files and data), any other data and records of any kind, and copies thereof (collectively, “Company Records”), created on any medium and furnished to, obtained by, or prepared by Romano in the course of or incident to Romano’s relationship with the Company, that are in Romano’s possession or under Romano’s control.

(c) Romano’s representations, warranties, covenants and obligations contained in this Agreement shall survive the termination of Romano’s relationship with the Company.

(d) Following any termination of this Agreement, Romano will fully cooperate with the Company in all matters relating to Romano’s continuing obligations under this Agreement.

(e) Upon termination of this Agreement, Romano will execute a certificate acknowledging compliance with this Agreement in the form reasonably requested by the Company.

Section 9. Assignment. Neither this Agreement nor any right hereunder or interest herein may be assigned or transferred by Romano without the express written consent of the Company.

Section 10. Independent Contractor. It is the express intention of the Company and Romano that Romano perform the Services as an independent contractor to the Company under a “work for hire” arrangement. All work product developed by Romano shall be deemed owned and assigned to the Company. Romano agrees to furnish (or reimburse the Company for) all tools and materials necessary to accomplish this Agreement and shall incur all expenses associated with performance, except as expressly provided in Exhibit A. Romano acknowledges and agrees that Romano is obligated to report as income all compensation received by Romano pursuant to this Agreement; and the Company will not make deductions from fees to Romano for taxes, insurance, bonds or the like. Romano agrees to and acknowledges the obligation to pay all self-employment and other taxes on such income.

Section 11. Benefits. The Company and Romano agree that Romano will receive no Company-sponsored employee benefits from the Company. If Romano is reclassified by a state or federal agency or court as Company’s employee, Romano will become a reclassified employee and will receive no benefits from the Company, except those mandated by state or federal law, even if by the terms of the Company’s benefit plans or programs of the Company in effect at the time of such reclassification, Romano would otherwise be eligible for such benefits.

Section 12. Arbitration and Equitable Relief.

12.1 Arbitration. Subject to the provisions of Section 12.4 below, Romano agrees that any and all controversies, claims or disputes with anyone (including the Company and any employee, officer, director, shareholder or benefit plan of the Company, in its capacity as such or otherwise) arising out of, relating to or resulting from Romano’s performance of the Services under this Agreement or the termination of this Agreement, including any breach of this Agreement, shall be subject to binding arbitration. ROMANO AGREES TO ARBITRATE, AND THEREBY AGREES TO WAIVE ANY RIGHT TO A TRIAL BY JURY WITH RESPECT TO, THE FOLLOWING DISPUTES, INCLUDING BUT NOT LIMITED TO: ANY STATUTORY CLAIMS UNDER STATE OR FEDERAL LAW, CLAIMS UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE AMERICANS WITH DISABILITIES ACT OF 1990, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, CLAIMS OF HARASSMENT, DISCRIMINATION OR WRONGFUL TERMINATION AND ANY STATUTORY CLAIMS. Romano understands that this Agreement to arbitrate also applies to any disputes that the Company may have with Romano.

12.2 Procedure. Romano agrees that any arbitration will be administered by the American Arbitration Association (“AAA”), and that a neutral arbitrator will be selected in a manner consistent with its rules. Romano agrees that the arbitrator will have the power to decide any motions brought by any party to the arbitration, including discovery motions, motions for summary judgment and/or adjudication and motions to dismiss and demurrers, prior to any arbitration hearing. Romano agrees that the arbitrator will issue a written decision on the merits. Romano also agrees that the arbitrator will have the power to award any remedies, including attorneys’ fees and costs, available under applicable law. Romano understands that the Company will pay for any administrative or hearing fees charged by the arbitrator or AAA, except that Romano shall pay the first $200.00 of any filing fees associated with any arbitration Romano initiates.

12.3 Remedy. Except as provided under Idaho law, arbitration will be the sole, exclusive and final remedy for any dispute between the Company and Romano. Accordingly, except as provided under Idaho law, neither the Company nor Romano will be permitted to pursue court action regarding claims that are subject to arbitration. Notwithstanding the foregoing, the arbitrator will not have the authority to disregard or refuse to enforce any lawful Company policy in place at the time of this Agreement, and the arbitrator shall not order or require the Company to adopt a policy not otherwise required by law which the Company has not adopted at the time of this Agreement.

12.4 Availability of Injunctive Relief. The Parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this arbitration agreement and without abridgment of the powers of the arbitrator. Further, Romano agrees that any party may petition the court for injunctive relief where either party alleges or claims a violation of Section 4 (Confidentiality), Section 5 (Ownership) and/or Section 6 (Covenant Not to Compete), or any other agreement regarding trade secrets, confidential information, non-solicitation, or non-competition. In the event either the Company or Romano seeks injunctive relief, the prevailing party will be entitled to recover reasonable costs and attorneys’ fees.

Section 13. Notice. Any notice or other communication required or permitted by this Agreement shall be in writing and shall be deemed given if delivered personally or by commercial messenger or courier service, or mailed by registered or certified mail (return receipt requested) or sent via facsimile (with acknowledgment of complete transmission) to a Party to this Agreement at such Party’s address set forth below (or at such other address for a Party as may be specified by like notice). If by mail, delivery shall be deemed effective three business days after mailing in accordance with this Section 14.

(i) If to the Company, to:

American Ecology Corporation

300 E. Mallard Drive, Suite 300

Boise, Idaho 83706

Attn: Chief Executive Officer

Tel: (208) 331-8400

Fax: (208) 331-7900

(ii) If to Romano, to:

P.O. Box 809

McCall, Idaho 83638

Section 14. Attorneys’ Fees. In any court action at law or equity that is brought by one of the Parties to this Agreement to enforce or interpret the provisions of this Agreement, the prevailing Party will be entitled to reasonable attorneys’ fees, in addition to any other relief to which that Party may be entitled.

Section 15. Entire Agreement. This Agreement (including Exhibit A) sets forth the Parties’ mutual rights and obligations with respect to the subject matter hereof. It is intended to be the final, complete, and exclusive statement of the terms of the Parties’ agreements regarding these subjects. This Agreement supersedes all other prior and contemporaneous agreements and statements on these subjects, and it may not be contradicted by evidence of any prior or contemporaneous statements or agreements. To the extent that the practices, policies, or procedures of the Company, now or in the future, apply to Romano and are inconsistent with the terms of this Agreement, the provisions of this Agreement shall control.

Section 16. Amendment. This Agreement may be amended only by a writing signed by Romano and by a representative of the Company duly authorized.

Section 17. Severability. If any term, provision, covenant or condition of this Agreement, or the application thereof to any person, place or circumstance, shall be held by a court of competent jurisdiction to be invalid, unenforceable or void, the remainder of this Agreement and such term, provision, covenant or condition as applied to other persons, places and circumstances shall remain in full force and effect.

Section 18. Rights Cumulative. The rights and remedies provided by this Agreement are cumulative, and the exercise of any right or remedy by either Party hereto (or by its successors), whether pursuant to this Agreement, to any other agreement, or to law, shall not preclude or waive its right to exercise any or all other rights and remedies.

Section 19. Nonwaiver. No failure or neglect of either Party hereto in any instance to exercise any right, power or privilege hereunder or under law shall constitute a waiver of any other right, power or privilege or of the same right, power or privilege in any other instance. All waivers by either Party hereto must be contained in a written instrument signed by the Party to be charged and, in the case of the Company, by an executive officer of the Company or other person duly authorized by the Company.

Section 20. Agreement to Perform Necessary Acts. Romano agrees to perform any further acts and execute and deliver any documents that may be reasonably necessary to carry out the provisions of this Agreement.

Section 21. Assignment. This Agreement is personal to Romano and may not be assigned by him without the Company’s prior written consent. This Agreement may be assigned by the Company in its discretion.

Section 22. Compliance with Law. In connection with the Services rendered hereunder, Consultant agrees to abide by all federal, state, and local laws, ordinances and regulations.

Section 23. Taxes. Romano agrees to pay all appropriate local, state and federal taxes.

Section 24. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Idaho, without regard to its conflicts of laws principles. Any claim, action, suit or other proceeding initiated by either of the Parties under or in connection with this Agreement shall exclusively be asserted, brought, prosecuted and maintained in any federal or state court in the State of Idaho, as the Party bringing such action, suit or proceeding shall elect, having jurisdiction over the subject matter thereof, and each of the Parties hereby irrevocably (i) submits to the jurisdiction of such courts, (ii) waives any and all rights to object to the laying of venue in any such court, (iii) waives any and all rights to claim that such court may be an inconvenient forum, and (iv) agrees that service of process on them in any such action, suit or proceeding may be effected by the means by which notices may given to it under this Agreement.

Section 25. Counterparts and Delivery. This Agreement may be executed in any number of counterparts, each of which as so executed shall be deemed to be an original, but all of which together shall constitute one and the same agreement. Any signed counterpart to this Agreement may be delivered by facsimile transmission with the same legal force and effect as delivery of an originally signed document.

Section 26. Headings. Section headings are used in this Agreement for reference purposes only and shall not affect the interpretation or meaning of this Agreement.

Section 27. Voluntary Nature of Agreement. Romano acknowledges and agrees that he is executing this Agreement voluntarily and without any duress or undue influence by the Company or anyone else. Romano further acknowledges and agrees that he has carefully read this Agreement and has asked any questions needed to understand the terms, consequences and binding effect of this Agreement and fully understand it, including that he is waiving his right to a jury trial. Finally, Romano agrees that he has been provided an opportunity to seek the advice of an attorney of his choice before signing this Agreement.

CAUTION: THIS AGREEMENT CREATES IMPORTANT OBLIGATIONS OF TRUST AND AFFECTS THE CONSULTANT’S RIGHTS TO INVENTIONS AND OTHER INTELLECTUAL PROPERTY THAT ROMANO MAY DEVELOP.

[The remainder of this page intentionally left blank.]

[Signature Page Follows]

In Witness Whereof, the Parties have entered into this Agreement effective as of the Agreement Date first set forth above.

	“Company”:	American Ecology Corporation By: /s/ Jeffrey S. Merrifield Name: Jeffrey S. Merrifield Title: Lead Independent Director


	“Romano”:	/s/ Stephen A. Romano Stephen A. Romano

[Signature Page to Consulting Services and Director Compensation Agreement]

Exhibit A

DESCRIPTION OF SERVICES AND COMPENSATION

Services: From time to time, at the request of the Company, Romano shall consult with the Company’s senior management team regarding acquisition and growth strategies, governmental and regulatory affairs, investor, media and customer relations, operational and safety issues and other matters associated with the conduct of the Company’s business.

2.	Compensation: Romano shall be paid a monthly retainer in the amount of $3,000. The Board of Directors shall annually review Romano’s monthly retainer to determine whether any increase in the retainer is warranted based on increased utilization of his consulting services.

EX-10.71 4 usecology_10q-ex1071.htm EMPLOYMENT AGREEMENT - BAUMGARDNER usecology_10q-ex1071.htm

EXHIBIT 10.71

EXECUTIVE EMPLOYMENT AGREEMENT

This EXECUTIVE EMPLOYMENT AGREEMENT (this “Employment Agreement” or this “Agreement”) is made and entered into effective as of the 1st day of January, 2010 (the “Effective Date”), by and between American Ecology Corporation, a Delaware corporation (the “Company”), and James R. Baumgardner (“Executive”). The Company and Executive are sometimes collectively referred to herein as the “Parties,” and individually, as a “Party.”

Whereas, Executive is currently rendering valuable services to the Company in the capacity of President and Chief Operating Officer, pursuant to an Executive Employment Agreement, dated December 10, 2008 (the “Prior Agreement”); and

Whereas, commencing on the Effective Date set forth above, Executive shall become the President, Chief Executive Officer and Chief Operating Officer of the Company; and

Whereas, the Parties desire to enter into this Agreement, to continue Executive’s employment, on the terms and conditions hereinafter set forth, to reflect, inter alia, Executive’s status as Chief Executive Officer.

Now, Therefore, in consideration of the premises, the mutual promises, covenants and conditions herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound hereby, agree as follows:

1.0. Employment.

Section 1.01. Employment. The Company hereby employs Executive, and Executive hereby accepts employment with the Company, all upon the terms and subject to the conditions set forth in this Employment Agreement, effective as of the Effective Date first set forth above.

Section 1.02. Term of Employment. The term of employment of Executive by the Company pursuant to this Employment Agreement shall be for the period commencing on the Effective Date and ending December 31, 2012 (the “Employment Term”), or such earlier date that Executive’s employment is terminated in accordance with the provisions of this Employment Agreement; provided, however, that the Employment Term shall automatically renew for additional one (1) year periods if neither the Company nor Executive has notified the other in writing of its or his intention not to renew this Employment Agreement on or before 60 days prior to the expiration of the Employment Term (including any renewal(s) thereof).

Section 1.03. Capacity and Duties. Executive is and shall be employed in the capacity of President, Chief Executive Officer and Chief Operating Officer of the Company and its subsidiaries as the senior executive with overall responsibility for Company performance, and shall have such other duties, responsibilities and authorities as may be assigned to him from time to time by the Board of Directors of the Company (the “Board”), which are not materially inconsistent with Executive’s positions with the Company. Except as otherw ise herein provided, Executive 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 Executive to be performed by him under this Employment Agreement.

Section 1.04. Place of Employment. Executive’s principal place of work shall be the main corporate office of the Company, currently located in Boise, Idaho; provided, however, that the location of the Company and any of its offices may be moved from time to time in the discretion of the Board.

Section 1.05. No Other Employment. During the Term, Executive 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 Executive from (i) participating in charitable, civic, educational, professional, community or industry affairs; (ii) sitting on one outside board of directors for a public or private company that does not compete with AEC, with the prior concurrence of the Board that the required time commitment with respect to such position is acceptable; and (iii) 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 Executive 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 clauses (i), (ii) and (iii), above, do not materially interfere with the performance of Executive’s duties hereunder or create a potential business conflict or the appearance thereof.

Section 1.06. Adherence to Standards. Executive 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 Executive’s position and level of authority.

Section 1.07. Review of Performance. The Board shall periodically review and evaluate with Executive his performance under this Employment Agreement.

2.0. Compensation.

During the Employment Term, subject to all the terms and conditions of this Employment Agreement and as compensation for all services to be rendered by Executive hereunder, the Company shall pay to or provide Executive with the following:

Section 2.01. Base Salary. During the Employment Term, the Company shall pay to Executive an annual base salary (“Base Salary”) in an amount not less than Three Hundred Thousand and No/100 Dollars ($300,000.00). Such Base Salary shall be payable in accordance with the regular payroll practices and procedures of the Company.

Section 2.02. Incentive Pay. Executive shall be eligible to participate in any cash incentive or bonus plans of the Company which are in effect from time to time, including the annual cash incentive payment opportunity granted to Executive under the Company’s Management Incentive Plan (“MIP” and together with any other cash incentive or bonus plans of the Company, the “Cash Incentive Plans”), subject to the terms and conditions thereof, at a 75% of B ase Salary at a 100% of MIP target basis, which such MIP target shall be set annually by the Board. Anything to the contrary in this Agreement notwithstanding, the Company reserves the right to modify or eliminate any or all of its Cash Incentive Plans at any time. In the event of any consistency between the terms of this Employment Agreement and the terms of any Cash Incentive Plan, the Cash Incentive Plan shall govern and control.

Section 2.03. Paid Time Off and Other Benefits. Executive shall be entitled to five (5) weeks Paid Time Off (“PTO”), and shall have the right, on the same basis as other members of senior management of the Company, to participate in any and all employee benefit plans and programs of the Company, including medical plans, insurance plans and other benefit plans and programs as shall be, from time to time, in effect for executive employees and senior management personnel of the Company. Such participation shall be subject to the terms of the app licable plan documents, generally applicable Company policies and the discretion of the Board or any administrative or other committee provided for in, or contemplated by, each such plan or program. Anything to the contrary in this Agreement notwithstanding, the Company reserves the right to modify or terminate such benefit plans and programs at any time.

Section 2.04. Other Benefits. The Company may provide Executive with other or additional benefits not specifically described herein. In such event, these other or additional benefits shall be specified in writing and attached hereto as Exhibit A (Other Benefits).

Section 2.05. Expenses. The Company shall reimburse Executive for all reasonable, ordinary and necessary expenses including, but not limited to, automobile and other business travel and customer and business entertainment expenses incurred by him in connection with his employment in accordance with the Company’s expense reimbursement policy; provided, however, Executive 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 of 1986, as amended (the “Code”). Executive’s right to reimbursement hereunder may not be liquidated or exchanged for any other benefit, and Executive shall be reimbursed for eligible expenses no later than the close of the calendar year following the year in which Executive incurs the applicable expense.

3.0. Equity Ownership.

Section 3.01. Equity Ownership Requirement. In order to more closely align Executive’s interest in the Company with that of its stockholders, Executive and the Company agree as follows: (i) Within 12 months of the Effective Date, Executive agrees to purchase, at his cost and expense, Company common stock in an aggregate amount not less than $250,000, including any current ownership of Company common stock; (ii) within 12 months of the Effective Date, Executive further agrees to maintain a total equity ownership position in the Company, at his cost and expense, with an aggregate value of not less than $600,000 (two times his annual Base Salary as of the Effective Date (including, not in addition to, the foregoing $250,000 of stock)), such dollar amount to be calculated based on the greater of cost basis or market; and (iii) Executive agrees to maintain such total equity ownership position throughout the remainder Employment Term (the foregoing requirements shall be collectively referred to as the “Equity Ownership Requirement”).

Section 3.02. Failure to Maintain Equity Ownership. If, during the Employment Term, Executive shall fail to maintain the Equity Ownership Requirement, Executive shall have 30 days to cure such failure by acquiring additional shares of common stock in the Company, at Executive’s sole cost and expense. If Executive fails to cure the breach of the Equity Ownership Requirement within such 30-day period, the vesting of all previously granted but unvested equity grants, as set forth in Item 2(a) of Exhibit A hereto (Other Benefits) shall terminate, and Executive shall not qualify for any new equity grants thereafter.

4.0. Termination of Employment.

Section 4.01. Termination of Employment. Executive’s employment and this Employment Agreement may be terminated prior to expiration of the Employment Term as follows (with the date of termination of Executive’s employment hereunder being referred to hereinafter as the “Termination Date”):

(a) By either Party by delivering 60 days’ prior written notice of non-renewal as set forth in the Section 1.02 (Term of Employment);

(b) Upon no less than 30 days’ written notice from the Company to Executive at any time without Cause (as hereinafter defined) and other than due to Executive’s death or Disability, subject to the provisions of Section 5.02 (Termination by the Company Without Cause or by the Executive For Good Reason);

(c) By the Company for Cause (as hereinafter defined) immediately upon written notice stating the basis for such termination;

(d) Due to the death or Disability (as hereinafter defined) of Executive;

(e) By Executive at any time with or without Good Reason (as hereinafter defined) upon 30 days’ written notice from Executive to the Company (or such shorter period to which the Company may agree; and

(f) Upon the mutual agreement of the Company and Executive.

Section 4.02. Effect of Termination. In the event of termination of Executive’s employment with the Company for any reason, or if Executive is required by the Board, Executive agrees to resign, and shall automatically be deemed to have resigned, from any offices (including any directorship) Executive holds with the Company or any of its subsidiaries effective as of the Termination Date or, if applicable, effective as of a date selected by the Board.

5.0. Payments Upon Termination of Employment.

Section 5.01. Termination by the Company For Cause or by the Executive Without Good Reason. If Executive’s employment and this Employment Agreement are terminated by the Company for Cause or by Executive without Good Reason, the Company shall pay Executive the Accrued Obligations (as hereinafter defined) (other than, however, any amounts due under any Cash Incentive Plan which shall be forfeited pursuant to the terms of such plan), in a single, lump-sum payment within 45 days following such termination.

Section 5.02. Termination by the Company Without Cause or by the Executive For Good Reason. If Executive’s employment and this Employment Agreement are terminated by the Company without Cause or if Executive terminates his employment and this Employment Agreement for Good Reason, the Company shall pay Executive the Accrued Obligations in a single, lump-sum payment within 45 days following such termination. In addition, Executive shall be entitled to receive, subject, however, to Sections 6.0 and 7.0, the following: (i) an amount equal to the greater of the Base Salary payable to Executive for the remainder of the Employment Term or one year’s Base Salary (“Severance Payment”), which shall be payable in bi-weekly installments, in accordance with the regular payroll practices and procedures of the Company (or alternatively, if mutually agreed by the parties, in one lump-sum payment); (ii) continued vesting of granted stock options following the Termination Date for the shorter of a period of one year or the original expiration date of such option; (iii) continued vesting of restricted stock grants for a period of 12 months following the Termination Date; and (iv) continued medical, hospitalization, life insurance and disability benefits to which Executive was entitled at the Termination Date ( any of which may, in the Company’s discretion, be structured as a reimbursement to the Executive of the after-tax cost thereof) for a period of 24 months following the Termination Date (or until Executive receives similar or comparable coverage from a new employer). All such additional payments and benefits under this Section 5.02 shall be conditional on Executive’s continued compliance with Section 10.0 (Return of Property), Section 13.0 (Confidentiality), Section 14.0 (Work Product Assignment), and Section 15.0 (Covenant Not to Compete).

Section 5.03. Termination Due to Death. If Executive’s employment and this Employment Agreement are terminated due to Executive’s death, the Company shall pay the estate of Executive the Accrued Obligations in a single, lump-sum payment within 45 days following such termination.

Section 5.04. Termination Due to Disability. If Executive’s employment and this Employment Agreement are terminated due to his Disability, the Company shall pay Executive the Accrued Obligations in a single, lump-sum payment within 45 days following such termination; in addition, Executive will be eligible to participate in the Company’s Long-Term Disability Plan, on a basis no less favorable to Executive than other senior executives of the Company.

Section 5.05. Retirement. If Executive’s employment and this Employment Agreement are terminated by virtue of Executive’s Retirement prior to the expiration of the Employment Term, the Company shall pay Executive the Accrued Obligations (other than, however, any amounts due under any Cash Incentive Plan, which shall be forfeited pursuant to the terms of such plan) in a single, lump-sum payment within 45 days following such termination.

6.0. Payment Upon Change of Control.**

7.0. Compliance With Section 409A.

Notwithstanding anything to the contrary in this Employment Agreement, no severance pay or benefits to be paid or provided to the Executive, if any, pursuant to this Agreement, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A of the Code and any final regulations and official guidance promulgated thereunder (“Section 409A”) (together, the “Deferred Compensation Separation Benefits”) will be paid or otherwise provided until the Executive has a “separation from service” within the meaning of Section 409A. In addition, if the Execut ive is a “specified employee” within the meaning of Section 409A at the time of the Executive’s termination (other than due to death), then, to the extent necessary to avoid the imposition of penalty taxes on Executive

**	Certain information in this exhibit has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

pursuant to Section 409A, the Deferred Compensation Separation Benefits that are payable within the first six months following the Executive’s separation from service, will become payable on the first payroll date that occurs on or after the date six months and one (1) day following the date of the Executive’s separation from service. All subsequent Deferred Compensation Separation Benefits, if any, will be payable in accordance with the payment schedule applicable to each payment or benefit. Notwithstanding anything herein to the contrary, if the Executive dies following the Executive’s separation from service, but prior to the six-month anniversary of the separation from service, then any payments delayed in accordance with this Section 7.0, together with interest, will be payable in a lump sum as soon as administratively practicable after the date of the Executive’s death and all other Deferred Compensation Separation Benefits will be payable in accordance with the payment schedule applicable to each payment or benefit. Each payment and benefit payable under this Agreement is intended to constitute separate payments for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations. The foregoing provisions are intended to comply with the requirements of Section 409A so that none of the severance payments and benefits to be provided hereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. The Executive and the Company agree to work together in good faith to consider amendments to this Employment Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to the Executive under Section 409A. During any period in which any Def erred Compensation Separation Benefits to Executive are deferred pursuant to the foregoing, Executive shall be entitled to interest on the deferred amount(s) at a per annum rate equal to the highest rate of interest applicable to six-month non-callable certificates of deposit with daily compounding offered by the following institutions: Citibank N.A., Wells Fargo Bank, N.A. or Bank of America, on the date of such separation from service.

8.0. Limitation on Payments.

In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section 8.0, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits under the foregoing clause (i) will be either:

(a) delivered in full; or

(b) delivered as to such lesser extent as would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code,

Whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all of some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction shall occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G); (iii) cancellation of accelerated vesting of equity awards; and (iv) reduct ion of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Executive’s equity awards. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 8.0 will be made in writing by an independent firm (the “Firm”) immediately prior to Change of Control, whose determination will be conclusive and binding upon the Executive and the Company for all purposes. For purposes of making the calculations required by this Section 8.0, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the applica tion of Sections 280G and 4999 of the Code. The Company and Executive will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section 8.0. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section.

9.0. Definitions.

In addition to the words and terms elsewhere defined in this Employment Agreement, certain capitalized words and terms used herein shall have the meanings given to them by the definitions and descriptions in this Section 9.0, 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:

(a) “Accrued Obligations” shall include (i) any unpaid Base Salary through the Termination Date and any accrued PTO in accordance with the Company’s policy; (ii) any unpaid amounts due under any Cash Incentive Plan earned with respect to any fiscal year ending on or prior to the Termination Date; (iii) reimbursement for any un-reimbursed business expenses incurred through the Termination Date; and (iv) all other payments, benefits or fringe benefits to which Executive 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.

(b) A termination for “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 (excluding, for such purposes, Executive, if Executive is a member of the Board) voting that Executive:

(i) Has engaged in willful neglect (other than neglect resulting from his incapacity due to physical or mental illness) or willful misconduct in the performance of his duties for the Company under this Employment Agreement;

(ii) Has engaged in willful conduct the consequences of which are materially adverse to the Company, monetarily or otherwise;

(iii) Has materially breached the terms of this Employment Agreement, and such breach persisted after notice thereof from the Company and a reasonable opportunity to cure; or

(iv) Has been convicted of (or has plead guilty or no contest to) any felony other than a traffic violation.

(i) 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;

(ii) The sale, transfer, or other disposition of all or substantially all of the Company’s assets; or

(iii) 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 subparagraph (iii), 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 Executive 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.

(d) The term “Disability” shall be as defined in the Company’s Long-Term Disability Plan.

(e) The term “Good Reason” shall mean the occurrence of any of the following without Executive’s prior written consent during the Employment Period, which occurrence continues for 10 days after written notice thereof from Executive to the Board:

(i) Any material diminution or adverse change in Executive’s position, status, title, authorities or responsibilities, office or duties under this Employment Agreement which represents a demotion from such position, status, title, authorities or responsibilities, office or duties which are materially inconsistent with his position, status, title, authorities or responsibilities, office or duties set forth in this Employment Agreement, or any removal of Executive from, or failure to appoint, elect, reappoint or reelect Executive 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 position, status, title, authorities or responsibilities, office or duties customarily attributable solely to the Company ceasing to be a publicly-traded corporation shall constitute Good Reason hereunder;

(ii) The exclusion of Executive in any incentive, bonus or other compensation plan in which Executive 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 Executive’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 Executive continues to meet all eligibility requirements thereof. Notwithstanding the foregoing, this provision shall not apply to the exclusion of Executive in any incentive, bonus or other compensation plan in which Executive participated at the time that this Employment Agreement is executed to the extent that such termination is required by law;

(iii) The failure by the Company to include or continue Executive’s participation in any employee benefit plan (including any medical, hospitalization, life insurance or disability benefit plan in which Executive participates or in which other Company executives participate), or any material fringe benefit or prerequisite enjoyed by him (or enjoyed by other Company executives) unless an equitable arrangement (embodied in an ongoing substitute or alternative plan, if applicable) has been made with respect to the failure to include Executive in such plan, or the failure by the Company to continue Executive'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 Executive continues to meet all eligibility requirements thereof. Notwithstanding the foregoing, this provision shall not apply to the exclusion of Executive in any Executive benefit plan in which Executive 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 Executive benefit plan or fringe benefit, or Executive’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 Executives generally; or

(v) Any material breach by the Company of any provision of this Employment Agreement and such failure has persisted after notice thereof from Executive and a reasonable opportunity to cure.

(f) The term “Retirement” shall mean retirement upon “normal retirement age” as defined in the Company’s 401(k) retirement plan.

10.0. Return of Property.

Executive agrees, upon the termination of his employment with the Company, to return all physical, computerized, electronic or other types of records, documents, proposals, notes, lists, files and any and all other materials, including without limitation, computerized and/or electronic information that refers, relates or otherwise pertains to the Company and/or its subsidiaries, and any and all business dealings of said persons and entities. In addition, Executive shall return to the Company all property and equipment that Executive has been issued during the course of his employment or which he otherwise currently possesses, including but not limited to, any computers, cellular phones, personal digital assistants, pagers and/or similar items. Executive shall immediately deliver to the Company any such physical, computerized, electronic or other types of records, documents, proposals, notes, lists, files, materials, property and equipment that are in Executive’s possession. Executive further agrees that he will immediately forward to the Company any business information regarding the Company and/or its subsidiaries that has been or is inadvertently directed to Executive following his last day of employment with the Company. The provisions of this Section 10.0 are in addition to any other written agreements on this subject that Executive may have with the Company and/or its subsidiaries, and are not meant to and do not excuse any additional obligations that Executive may have under such agreements.

11.0. Notices.

For the purposes of this Employment Agreement, notices and all other communications provided for hereunder 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 Chief Executive Officer) 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 ther eof with an expedited courier service, except that notice of change of address shall be effective only upon receipt. Notices shall be addressed as follows:

If to the Company:

300 East Mallard Drive, Suite 300, Boise, Idaho 83706.

If to the Executive:

To the address set forth on the Signature Page to this Agreement.

12.0. 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 Executive, in such amounts and in such form or forms as the Company may determine. The Executive 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. Executive hereby represents that to his knowledge he is in good physical and mental condition and is not under the influence of alcohol, drugs or similar substance.

13.0. Confidentiality.

Executive 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 the 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 Executive or breach of this Employment Agreement. Executive acknowledges that the Confidential Information is vital, sensitive, confidential and proprietary to the Company. The obligation to protect the secrecy of such information continues afte r employment with Company may be terminated. In furtherance of this agreement, Executive acknowledges that all Confidential Information which Executive 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 Executive 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 Executive in his fiduciary capacity and solely for the benefit of Company.

14.0. Work Product Assignment.

Executive 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 actual or anticipated business, research and development or existing or future products or services of the Company or of any of its subsidiaries or affiliates, and which are conceived, developed or made by Executive (whether or not during usual business hours and whether or not alone or in conjunction with any other person) while employed by the Company, 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, as applicable, and Executive hereby assigns to the Company all Work Product and all of his interest therein. Executive will promptly perform all actions reasonably requested by the Board (whether during or after his employment with the Company) to establish and confirm the ownership of such Work Product (including, without limitation, the execution and delivery of assignments, consents, powers of attorney and other instruments) by the Company or its subsidiaries or affiliates, as applicable, 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 d efense of interferences relating to any Work Product.

15.0. Covenant Not to Compete.

Section 15.01. Acknowledgment of Executive. Executive 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 Executive were to provide services to any person or entity in violation of this Employment Agreement because in performing such services Executive would inevitably disclose the Company’s Confidential Information to third parties and that the restrictions, prohibitions and other provision of this Section 15.0 are reasonable, f air 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.

Section 15.02. Non-Competition Covenant. Without the consent in writing of the Board, Executive will not, during the Employment Agreement and, in the event of the termination of Executive’s employment by the Company for Cause or by the Executive without Good Reason, for a period of 12 months after such termination of employment (if by the Company for Cause or by Executive without Good Reason), acting alone or in conjunction with others, directly or indirectly engage (either as owner, investor, p artner, 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 (5%) 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 Section 15.02.

Section 15.03. Non-Solicitation of Vendors and Customers. Without the consent in writing of the Board, after Executive’s employment has terminated for any reason, Executive will not, during the Employment Agreement and for a period of 18 months thereafter if Executive’s employment is terminated by the Company for Cause or by the Executive without Good Reason or due to a Change in Control, 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.

Section 15.04. Non-Solicitation of Employees. Without the consent in writing of the Board, after Executive’s employment has terminated for any reason, Executive will not, during the Employment Agreement and for a period of 24 months 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 or her employment.

16.0. Remedies.

Section 16.01. Specific Performance; Costs of Enforcement. Executive 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. Executive 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 perform ance by Executive of his obligations hereunder and to enjoin him from engaging in any activity in violation hereof and that no claim by Executive against the Company or its successors or assigns will constitute a defense or bar to the specific enforcement of such obligations. Executive 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 Executive of any covenant or agreement contained herein, the running of the restrictive covenant periods (but not of Executive’s obligations hereunder) shall be tolled during the period of the continuance of any actual breach or violation.

Section 16.02. Remedy for Breach of Restrictive Covenants. The provisions of Section 13.0 (Confidentiality), Section 14.0 (Work Product Assignment), and Section 15.0 (Covenant Not to Compete) are separate and distinct commitments independent of each of the other Sections. Accordingly, notwithstanding any other provisions of this Emp loyment Agreement, Executive agrees that damages in the event of a breach or a threatened breach by Executive of Section 13.0 (Confidentiality) and Section 15.0 (Covenant Not to Compete) would be difficult if not impossible to ascertain and an inadequate remedy, and it is therefore agreed that the Company, in addition to and without limiting any other remedy or right it may have, shall have the right to an immediate injunction or other equitable relief enjoining any such threatened or actual breach, without any requirement to post bond or provide similar security. The existence of this right shall not preclude the Company from pursuing any other rights and remedies at law or in equity that the Company may have, including recovery of damages for any breach of s uch Sections.

Section 16.03. Right to Cancel Payments.

(a) In addition to the remedies set forth above in Sections 16.01 and 16.02, the Company may, at the sole discretion of the Board, cancel, rescind, suspend, withhold or otherwise limit or restrict the Severance Payment under Section 5.02 (Termination by the Company Without Cause or by the Executive For Good Reason) (which excludes any other payments made to Executive under Section 2.0 and under Sections 5.0 and 6.0 above), whet her vested or not, at any time if:

(i) Executive is not in compliance with all of the provisions of Section 13.0 (Confidentiality), Section 14.0 (Work Product Assignment) and Section 15.0 (Covenant Not to Compete); and

(ii) Such non-compliance has been finally determined by binding arbitration pursuant to Section 17.0 (Dispute Resolution).

(b) As a condition to the receipt of any Severance Payment, Executive shall certify to the Company that he is in compliance with the provisions set forth above.

(c) In the event that Executive fails to comply with the provisions set forth in Section 13.0 (Confidentiality), Section 14.0 (Work Product Assignment) and/or Section 15.0 (Covenant Not to Compete), as finally determined by binding arbitration pursuant to Section 17.0 (D ispute Resolution), prior to or within twelve (12) months after any payment by the Company with respect to any Severance Payment under Section 5.02, such payment may be rescinded by the Company within 12 months thereafter. In the event of such rescission, Executive shall pay to the Company, within 12 months of the Company’s rescission of one or more Severance Payments, the amount of any such payment(s) received as a result of the rescinded payment(s), without interest, in such further manner and on such further terms and conditions as may be required by the Company; and the Company shall be entitled to set-off against the amount of such payment any amount owed to Executive by the Company, other than wages.

(d) Executive 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.

17.0. Dispute Resolution.

Except as described above in Section 16.02 (Remedy for Breach of Restrictive Covenants):

Section 17.01. Initial Negotiations. Company and Executive agree to resolve all disputes arising out of their employment relationship by the following alternative dispute resolution process: (a) the Company and Executive 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, however, 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 evaluatio n 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.

Section 17.02. Mandatory Arbitration. Any controversy or claim arising out of or connected with Executive’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’ e xperience 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.

Section 17.03. Arbitration Rules.

(a) 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 .

(b) 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 e xtent 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.

18.0. Attorneys’ Fees.

Section 18.01. Prevailing Party Entitled to Attorneys’ Fees. 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), excluding, however, any time spent by Company employees, including in-house legal counsel, and if such successful Party or Parties shall recover judgment in any such action or proceeding, such cost s, expenses and attorneys’ fees shall be included as part of such judgment.

Section 18.02. Limitation on Fees. 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.

19.0. Miscellaneous Provisions.

Section 19.01. Prior Employment Agreements. Executive represents and warrants that Executive’s performance of all the terms of this Employment Agreement and as an Executive 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 Executive in confidence or in trust prior to Executive’s employment by the Company. Executive 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 Executive 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 Executive with the Company, including without limitation, the Prior Agreement.

Section 19.02. Assignment; Binding Effect. This Employment Agreement may not be assigned by Executive in whole or in part. Notwithstanding the foregoing, this Employment Agreement shall inure to the benefit of and be enforceable by Executive’s personal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If Executive 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 Executive’s estate.

Section 19.03. Headings. Headings used in this Employment Agreement are for convenience only and shall not be used to interpret or construe its provisions.

Section 19.04. 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. 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.

Section 19.05. 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.

Section 19.06. 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 Executive 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 Executive, 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.

Section 19.07. Governing Law. This Employment Agreement shall be construed and enforced pursuant to the laws of the State of Idaho.

Section 19.08. Executive Officer Status. Executive acknowledges that he may be deemed to be an “executive officer” of the Company for purposes of the Securities Act of 1933, 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 obliga tions under the 1933 Act and 1934 Act, Executive shall provide to the Company such information about Executive as the Company shall reasonably request including, but not limited to, information relating to personal history and stockholdings. Executive 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 Executive and/or any members of Executive's immediate family. Executive further agrees to comply with all requirements placed on him by the Sarbanes-Oxley Act of 2002, Public Law 107-204.

Section 19.09. Tax Withholding. To the extent required by law, the Company shall deduct or withhold from any payments under this Employment Agreement all applicable Federal, state or local income taxes, Social Security, FICA, FUTA and other amounts that the Company determines in good faith are required by law to be withheld.

Section 19.10. 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.

Section 19.11. Exhibits. Any Exhibits attached hereto are incorporated herein by reference and are an integral part of this Employment Agreement and are deemed incorporated herein by reference.

Section 19.12. Retention of Counsel. Executive acknowledges that he has had the opportunity to review this Employment Agreement and the transactions contemplated hereby with his own legal counsel.

[The remainder of this page intentionally left blank]

IN WITNESS WHEREOF, this Executive Employment Agreement has been duly executed by the Company and Executive as of the date first above written.

EXECUTIVE:

/s/ James R. Baumgardner

James R. Baumgardner

COMPANY:

American Ecology Corporation

By: /s/ Stephen A. Romano

Name: Stephen A. Romano

Title: Chairman, Board of Directors

Exhibit A

OTHER BENEFITS

1. Equity Grants:

(a) Annual Equity Grants: Executive shall receive three annual equity grants, with an aggregate value of $200,000, each year through 2012, provided Executive remains employed as of each Grant Date. Each “Grant Date” shall be on the 3rd full day of trading after announcement of the Company’s full fiscal year earnings for the preceding year (e.g., late February or early March 2010, 2011 and 2012). The equity grants shall be priced based on the closing market price (“FMV”) of the Company’s common stock on the Grant Date. Each year’s equity grants shall be as follows:

Equity Grant	Price/Strike Price	Percent of Total Grant	Vesting
Restricted Stock	FMV@Grant Date	50%	12-month vesting
Stock Options	FMV@Grant Date	50%	36-month vesting

(b) One-Time Equity Grant: In connection with his start date as CEO, Executive shall receive a one-time equity grant of common stock with a value of $250,000. The shares of common stock shall be 100% vested on the date of grant, and shall be valued based on FMV on the close of business on January 4, 2010.

Exhibit B

CHANGE OF CONTROL PAYMENT

Enterprise Value (1)	Change of Control Payment (2)
**	**
**	**
**	**
**	**
**	**

(1)	Dollar Amounts are in Millions. Enterprise value equal to potential purchase price or market capitalization.

(2)

Expressed as a percentage of enterprise value. By way of illustration, and not of limitation, (i) if the enterprise value represented in the Change of Control transaction is ** million, the Change of Control Payment would be equal to ** (** x ** = **); and (ii) if the enterprise value represented in the Change of Control transaction is ** million, the Change of Control payment would be equal to ** (** x ** = **).

**	Certain information in this exhibit has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

EX-10.72 5 usecology_10q-ex1072.htm EMPLOYMENT AGREEMENT - BELL usecology_10q-ex1072.htm

EXHIBIT 10.72

EMPLOYMENT AGREEMENT

This EMPLOYMENT AGREEMENT (this “Employment Agreement” or this “Agreement”) is made and entered into effective as of the 1st day of January, 2010 (the “Effective Date”), by and between American Ecology Corporation, a Delaware corporation (the “Company”), and Simon Bell (“Employee”). The Company and Employee are sometimes collectively referred to herein as the “Parties,” and individually, as a “Party.”

Whereas, Employee is currently rendering valuable services to the Company and the Parties desire to enter into this Agreement to continue Employee’s employment on the terms and conditions hereinafter set forth.

1.0. Employment.

Section 1.01. 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, effective as of the Effective Date first set forth above.

Section 1.02. Term of Employment. The term of employment of Employee by the Company pursuant to this Employment Agreement shall be for the period commencing on the Effective Date and ending December 31, 2010 (the “Employment Term”), or such earlier date that Employee’s employment is terminated in accordance with the provisions of this Employment Agreement; provided, however, that the Employment Term 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 60 days prior to the expiration of the Employment Term (including any renewal(s) thereof).

Section 1.03. Capacity and Duties. Employee is and shall be employed in the capacity of Vice President Operations of the Company and its subsidiaries as the senior executive with overall responsibility for the Company’s operations, and shall have such other duties, responsibilities and authorities as may be assigned to him from time to time by the Chief Executive Officer of the Company (the “CEO”), which are not materially inconsistent with Employee’s position(s) 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.

Section 1.04. No Other Employment. During the Term, 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 clauses (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.

Section 1.05. Adherence to Standards. Employee shall comply with the written policies, standards, rules and regulations of the Company from time to time established for all Employee officers of the Company consistent with Employee’s position and level of authority.

Section 1.06. Review of Performance. The CEO shall periodically review and evaluate with Employee his performance under this Employment Agreement.

2.0. Compensation.

During the Employment Term, subject to all the terms and conditions of this Employment Agreement and as compensation for all services to be rendered by Employee hereunder, the Company shall pay to or provide Employee with the following:

Section 2.01. Base Salary. During the Employment Term, the Company shall pay to Employee an annual base salary (“Base Salary”) in an amount not less than One Hundred Seventy-Two Thousand and No/100 Dollars ($172,000.00). Such Base Salary shall be payable in accordance with the regular payroll practices and procedures of the Company.

Section 2.02. Incentive Pay. Employee shall participate in any cash incentive or bonus plans of the Company which are in effect from time to time, including the annual cash incentive payment opportunity granted to Employee under the Company’s Management Incentive Plan (“MIP” and together with any other cash incentive or bonus plans of the Company, the “Cash Incentive Plans”), subject to the terms and conditions thereof, at a 40% of Base Salary at a 100% of MIP target basis, which such MIP target shall be set annually by the Board of Directors of the Company (the “Board”). Anything to the contrary in this Agreement notwithstanding, the Company reserves the right to modify or eliminate any or all of its Cash Incentive Plans at any time. In the event of any consistency between the terms of this Employment Agreement and the terms of any Cash Incentive Plan, the Cash Incentive Plan shall govern and control.

Section 2.03. Paid Time Off and Other Benefits. Employee shall be entitled to five (5) weeks Paid Time Off (“PTO”), and shall have the right, on the same basis as other members of senior management of the Company, to participate in any and all employee benefit plans and programs of the Company, including medical plans, insurance plans and other benefit plans and programs as shall be, from time to time, in effect for executive employees and senior management personnel of the Company. Such participation shall be subject to the terms of the applicable plan documents, generally applicable Company policies and the discretion of the Board or any administrative or other committee provided for in, or contemplated by, each such plan or program. Anything to the contrary in this Agreement notwithstanding, the Company reserves the right to modify or terminate such benefit plans and programs at any time.

Section 2.04. Other Benefits. The Company may provide Employee with other or additional benefits not specifically described herein. In such event, these other or additional benefits shall be specified in writing and attached hereto as Exhibit A (Other Benefits).

Section 2.05. 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 and business entertainment expenses incurred by him in connection with his employment in accordance with the Company’s expense reimbursement policy; provided, 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 of 1986, as amended (the “Code”). Employee’s right to reimbursement hereunder may not be liquidated or exchanged for any other benefit, and Employee shall be reimbursed for eligible expenses no later than the close of the calendar year following the year in which Employee incurs the applicable expense.

3.0. Equity Ownership.

Section 3.01. Equity Ownership Requirement. In order to more closely align Employee’s interest in the Company with that of its stockholders, Employee and the Company agree as follows: (i) within 12 months of the Effective Date, Employee agrees to have acquired (through purchase, grant or exercise), at his cost and expense, Company common stock in an aggregate amount not less than $43,000, including any current ownership of Company common stock; (ii) within 24 months of the Effective Date, Employee agrees have acquired (through purchase, grant or exercise), at his cost and expense, Company common stock in an aggregate amount not less than $86,000, including any current ownership of Company common stock; (iii) within 36 months of the Effective Date, Employee agrees to have acquired (through purchase, grant or exercise), at his cost and expense, Company common stock in an aggregate amount not less than $129,000, each such dollar amount to be calculated based on the greater of cost basis or market; and (iv) Employee agrees to maintain such total equity ownership position throughout the remainder Employment Term (the foregoing requirements shall be collectively referred to as the “Equity Ownership Requirement”).

Section 3.02. Failure to Maintain Equity Ownership. If, during the Employment Term, Employee shall fail to maintain the Equity Ownership Requirement, Employee shall have 30 days to cure such failure by acquiring additional shares of common stock in the Company, at Employee’s sole cost and expense. If Employee fails to cure the breach of the Equity Ownership Requirement within such 30-day period, the vesting of all previously granted but unvested equity grants, as set forth in Item 1 (Annual Equity Grants) of Exhibit A hereto (Other Benefits) shall terminate, and Employee shall not qualify for any new equity grants thereafter.

4.0. Termination of Employment.

Section 4.01. Termination of Employment. Employee’s employment and this Employment Agreement may be terminated prior to expiration of the Employment Term as follows (with the date of termination of Employee’s employment hereunder being referred to hereinafter as the “Termination Date”):

(a) By either Party by delivering 60 days’ prior written notice of non-renewal as set forth in the Section 1.02 (Term of Employment);

(b) Upon no less than 30 days’ written notice from the Company to Employee at any time without Cause (as hereinafter defined) and other than due to Employee’s death or Disability, subject to the provisions of Section 5.02 (Termination by the Company Without Cause or by the Employee For Good Reason);

(c) By the Company for Cause (as hereinafter defined) immediately upon written notice stating the basis for such termination;

(d) Due to the death or Disability (as hereinafter defined) of Employee;

(e) By Employee at any time without Good Reason (as hereinafter defined) upon 30 days’ written notice from Employee to the Company (or such shorter period to which the Company may agree;

(f) By Employee at any time with Good Reason (as hereinafter defined) upon 90 day’s written notice from Employee to the Company of the occurrence of an event or circumstance believed to constitute Good Reason; and

(g) Upon the mutual agreement of the Company and Employee.

Section 4.02. Effect of Termination. 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 Employee holds with the Company or any of its subsidiaries effective as of the Termination Date or, if applicable, effective as of a date selected by the Board.

5.0. Payments Upon Termination of Employment.

Section 5.01. Termination by the Company For Cause or by the Employee Without Good Reason. If Employee’s employment and this Employment Agreement are terminated by the Company for Cause or by Employee without Good Reason, the Company shall pay Employee the Accrued Obligations (as hereinafter defined) (other than, however, any amounts under any Cash Incentive Plan which are forfeited pursuant to the terms of such plan as a result of the termination), in a single, lump-sum payment within 45 days following such termination.

Section 5.02. Termination by the Company Without Cause or by the 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, the Company shall pay Employee the Accrued Obligations in a single, lump-sum payment within 45 days following such termination. In addition, Employee shall be entitled to receive, subject, however, to the provisions of Sections 6.0 and 7.0, the following: (i) an amount equal to one (1) year’s Base Salary (“Severance Payment”), which shall be payable in bi-weekly installments, in accordance with the regular payroll practices and procedures of the Company; and (ii) continued medical, hospitalization, life insurance and disability benefits to which Employee was entitled at the Termination Date (any of which may, in the Company’s discretion, be structured as a reimbursement to the Employee of the after-tax cost thereof) for a period of 12 months following the Termination Date (or until Employee receives similar or comparable coverage from a new employer). Employee specifically acknowledges and agrees that all such additional payments and benefits under this Section 5.02 shall be conditional on Employee’s strict and continued compliance with Section 10.0 (Return of Property), Section 13.0 (Confidentiality), Section 14.0 (Work Product Assignment), and Section 15.0 (Covenant Not to Compete).

Section 5.03. Termination Due to Death. If Employee’s employment and this Employment Agreement are terminated due to Employee’s death, the Company shall pay the estate of Employee the Accrued Obligations in a single, lump-sum payment within 45 days following such termination.

Section 5.04. Termination Due to Disability. If Employee’s employment and this Employment Agreement are terminated due to his Disability, the Company shall pay Employee the Accrued Obligations in a single, lump-sum payment within 45 days following such termination; in addition, Employee will be eligible to participate in the Company’s Long-Term Disability Plan, on a basis no less favorable to Employee than other senior Employees of the Company.

Section 5.05. Retirement. If Employee’s employment and this Employment Agreement are terminated by virtue of Employee’s Retirement prior to the expiration of the Employment Term, the Company shall pay Employee the Accrued Obligations (other than, however, any amounts under any Cash Incentive Plan, which are forfeited pursuant to the terms of such plan as a result of the termination) in a single, lump-sum payment within 45 days following such termination.

6.0. Payment Upon Change of Control.

Upon a Change of Control of the Company (as hereinafter defined) during the Employment Term, Employee shall receive a payment equal to the Severance Payment described in Section 5.02 above, to be paid in a single lump-sum payment, within 45 days following the date of the Change of Control. In addition, all unvested stock options and restricted stock shall immediately vest upon a Change of Control.

7.0. Compliance With Section 409A.

Notwithstanding anything to the contrary in this Employment Agreement, no severance pay or benefits to be paid or provided to the Employee, if any, pursuant to this Agreement, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A of the Code and any final regulations and official guidance promulgated thereunder (“Section 409A”) (together, the “Deferred Compensation Separation Benefits”) will be paid or otherwise provided until the Employee has a “separation from service” within the meaning of Section 409A. In addition, if the Employee is a “specified employee” within the meaning of Section 409A at the time of the Employee’s termination (other than due to death), then, to the extent necessary to avoid the imposition of penalty taxes on Employee pursuant to Section 409A, the Deferred Compensation Separation Benefits that are payable within the first six months following the Employee’s separation from service, will become payable on the first payroll date that occurs on or after the date six months and one (1) day following the date of the Employee’s separation from service. All subsequent Deferred Compensation Separation Benefits, if any, will be payable in accordance with the payment schedule applicable to each payment or benefit. Notwithstanding anything herein to the contrary, if the Employee dies following the Employee’s separation from service, but prior to the six-month anniversary of the separation from service, then any payments delayed in accordance with this Section 7.0, together with interest, will be payable in a lump sum as soon as administratively practicable after the date of the Employee’s death and all other Deferred Compensation Separation Benefits will be payable in accordance with the payment schedule applicable to each payment or benefit. Each payment and benefit payable under this Agreement is intended to constitute separate payments for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations. The foregoing provisions are intended to comply with the requirements of Section 409A so that none of the severance payments and benefits to be provided hereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. The Employee and the Company agree to work together in good faith to consider amendments to this Employment Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to the Employee under Section 409A. During any period in which any Deferred Compensation Separation Benefits to Employee are deferred pursuant to the foregoing, Employee shall be entitled to interest on the deferred amount(s) at a per annum rate equal to the highest rate of interest applicable to six-month non-callable certificates of deposit with daily compounding offered by the following institutions: Citibank N.A., Wells Fargo Bank, N.A. or Bank of America, on the date of such separation from service.

8.0. Limitation on Payments.

In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Employee (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but for this Section 8.0, would be subject to the excise tax imposed by Section 4999 of the Code, then Employee’s severance benefits under the foregoing clause (i) will be either:

(a)

delivered in full; or

(b)

delivered as to such lesser extent as would result in no portion of such severance benefits being subject to excise tax under Section 4999 of the Code,

Whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, results in the receipt by Employee on an after-tax basis, of the greatest amount of severance benefits, notwithstanding that all of some portion of such severance benefits may be taxable under Section 4999 of the Code. If a reduction in severance and other benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction shall occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership or control” (within the meaning of Code Section 280G); (iii) cancellation of accelerated vesting of equity awards; and (iv) reduction of employee benefits. In the event that acceleration of vesting of equity award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of the Employee’s equity awards. Unless the Company and Employee otherwise agree in writing, any determination required under this Section 8.0 will be made in writing by an independent firm (the “Firm”) immediately prior to Change of Control, whose determination will be conclusive and binding upon the Employee and the Company for all purposes. For purposes of making the calculations required by this Section 8.0, the Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Employee will furnish to the Firm such information and documents as the Firm may reasonably request in order to make a determination under this Section 8.0. The Company will bear all costs the Firm may reasonably incur in connection with any calculations contemplated by this Section.

9.0. Definitions.

(a) “Accrued Obligations” shall include (i) any unpaid Base Salary through the Termination Date and any accrued PTO in accordance with the Company’s policy; (ii) any unpaid amounts due under any Cash Incentive Plan earned with respect to any fiscal year ending on or prior to the Termination Date; (iii) reimbursement for any un-reimbursed business expenses incurred through the Termination Date; 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.

(b) A termination for “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:

(ii) Has engaged in willful conduct the consequences of which are materially adverse to the Company, monetarily or otherwise;

(iii) Has materially breached the terms of this Employment Agreement, and such breach persisted after notice thereof from the Company and a reasonable opportunity to cure; or

(iv) Has been convicted of (or has plead guilty or no contest to) any felony other than a traffic violation.

(ii) The sale, transfer, or other disposition of all or substantially all of the Company’s assets; or

(iii) 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 subparagraph (iii), 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.

(d) The term “Disability” shall be as defined in the Company’s Long-Term Disability Plan.

(e) The term “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 30 days without being cured after written notice thereof from Employee to the Board:

(i) A material diminution in the Employee’s base compensation;

(ii) A material diminution in the Employee’s authority, duties or responsibilities;

(iii) Any other action or inaction that constitutes a material breach by the Company of this Agreement.

(f) The term “Retirement” shall mean retirement upon “normal retirement age” as defined in the Company’s 401(k) retirement plan.

10.0. Return of Property.

Employee agrees, upon the termination of his employment with the Company, to return all physical, computerized, electronic or other types of records, documents, proposals, notes, lists, files and any and all other materials, including without limitation, computerized and/or electronic information that refers, relates or otherwise pertains to the Company and/or its subsidiaries, and any and all business dealings of said persons and entities. In addition, Employee shall return to the Company all property and equipment that Employee has been issued during the course of his employment or which he otherwise currently possesses, including but not limited to, any computers, cellular phones, personal digital assistants, pagers and/or similar items. Employee shall immediately deliver to the Company any such physical, computerized, electronic or other types of records, documents, proposals, notes, lists, files, materials, property and equipment that are in Employee’s possession. Employee further agrees that he will immediately forward to the Company any business information regarding the Company and/or its subsidiaries that has been or is inadvertently directed to Employee following his last day of employment with the Company. The provisions of this Section 10.0 are in addition to any other written agreements on this subject that Employee may have with the Company and/or its subsidiaries, and are not meant to and do not excuse any additional obligations that Employee may have under such agreements.

11.0. Notices.

For the purposes of this Employment Agreement, notices and all other communications provided for hereunder 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 Chief Employee Officer) 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. Notices shall be addressed as follows:

If to the Company:

300 East Mallard Drive, Suite 300, Boise, Idaho 83706.

If to the Employee:

To the address set forth on the Signature Page to this Agreement.

12.0. 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. The 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 good physical and mental condition and is not under the influence of alcohol, drugs or similar substance.

13.0. 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 the 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.

14.0. Work Product Assignment.

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 actual or anticipated business, research and development or existing or future products or services of the Company or of any of its subsidiaries or affiliates, 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, 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, as applicable, and Employee hereby assigns to the Company all Work Product and all of his interest therein. Employee will promptly perform all actions reasonably requested by the CEO (whether during or after his employment with the Company) to establish and confirm the ownership of such Work Product (including, without limitation, the execution and delivery of assignments, consents, powers of attorney and other instruments) by the Company or its subsidiaries or affiliates, as applicable, 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.

15.0. Covenant Not to Compete.

Section 15.01. Acknowledgment of Employee. 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 15.0 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.

Section 15.02. Non-Competition Covenant. 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 the Employee without Good Reason, for a period of 12 months after such termination of employment (if 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 (5%) 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 Section 15.02.

Section 15.03. 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 18 months thereafter if Employee’s employment is terminated by the Company for Cause or by the Employee without Good Reason or due to a Change in Control, 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.

Section 15.04. 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 24 months 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 or her employment.

16.0. Remedies.

Section 16.01. Specific Performance; Costs of Enforcement. 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.

Section 16.02. Remedy for Breach of Restrictive Covenants. The provisions of Section 13.0 (Confidentiality), Section 14.0 (Work Product Assignment), and Section 15.0 (Covenant Not to Compete) are separate and distinct commitments independent of each of the other Sections. Accordingly, notwithstanding any other provisions of this Employment Agreement, Employee agrees that damages in the event of a breach or a threatened breach by Employee of Section 13.0 (Confidentiality) and Section 15.0 (Covenant Not to Compete) would be difficult if not impossible to ascertain and an inadequate remedy, and it is therefore agreed that the Company, in addition to and without limiting any other remedy or right it may have, shall have the right to an immediate injunction or other equitable relief enjoining any such threatened or actual breach, without any requirement to post bond or provide similar security. The existence of this right shall not preclude the Company from pursuing any other rights and remedies at law or in equity that the Company may have, including recovery of damages for any breach of such Sections.

Section 16.03. Right to Cancel Payments.

(a) In addition to the remedies set forth above in Sections 16.01 and 16.02, the Company may, at the sole discretion of the Board, cancel, rescind, suspend, withhold or otherwise limit or restrict the Severance Payment under Section 5.02 (Termination by the Company Without Cause or by the Employee For Good Reason) (which excludes any other payments made to Employee under Section 2.0 and under Sections 5.0 and 6.0 above), whether vested or not, at any time if:

(i) Employee is not in compliance with all of the provisions of Section 13.0 (Confidentiality), Section 14.0 (Work Product Assignment) and Section 15.0 (Covenant Not to Compete); and

(ii) Such non-compliance has been finally determined by binding arbitration pursuant to Section 17.0 (Dispute Resolution).

(b) As a condition to the receipt of any Severance Payment, Employee shall certify to the Company that he is in compliance with the provisions set forth above.

(c) In the event that Employee fails to comply with the provisions set forth in Section 13.0 (Confidentiality), Section 14.0 (Work Product Assignment) and/or Section 15.0 (Covenant Not to Compete), as finally determined by binding arbitration pursuant to Section 17.0 (Dispute Resolution), prior to or within twelve (12) months after any payment by the Company with respect to any Severance Payment under Section 5.02, such payment may be rescinded by the Company within 12 months thereafter. In the event of such rescission, Employee shall pay to the Company, within 12 months of the Company’s rescission of one or more Severance Payments, the amount of any such payment(s) received as a result of the rescinded payment(s), without interest, in such further manner and on such further terms and conditions as may be required by the Company; and the Company shall be entitled to set-off against the amount of such payment any amount owed to Employee by the Company, other than wages.

(d) 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.

17.0. Dispute Resolution.

Except as described above in Section 16.02 (Remedy for Breach of Restrictive Covenants):

Section 17.01. Initial Negotiations. 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, however, 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.

Section 17.02. Mandatory Arbitration. 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.

Section 17.03. Arbitration Rules.

(b) 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.

18.0. Attorneys’ Fees.

Section 18.01. Prevailing Party Entitled to Attorneys’ Fees. 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), excluding, however, any time spent by Company employees, including in-house legal counsel, 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.

19.0. Miscellaneous Provisions.

Section 19.01. 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, including without limitation, the Prior Agreement.

Section 19.02. Assignment; Binding Effect. This Employment Agreement may not be assigned by Employee in whole or in part. Notwithstanding the foregoing, 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.

Section 19.03. Headings. Headings used in this Employment Agreement are for convenience only and shall not be used to interpret or construe its provisions.

Section 19.05. 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.

Section 19.06. 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.

Section 19.07. Governing Law. This Employment Agreement shall be construed and enforced pursuant to the laws of the State of Idaho.

Section 19.08. Employee Officer Status. Employee acknowledges that he may be deemed to be an “Employee officer” of the Company for purposes of the Securities Act of 1933, 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, Public Law 107-204.

Section 19.11. Exhibits. Any Exhibits attached hereto are incorporated herein by reference and are an integral part of this Employment Agreement and are deemed incorporated herein by reference.

Section 19.12. Retention of Counsel. Employee acknowledges that he has had the opportunity to review this Employment Agreement and the transactions contemplated hereby with his own legal counsel.

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IN WITNESS WHEREOF, this Employee Employment Agreement has been duly executed by the Company and Employee as of the date first above written.

EMPLOYEE:

/s/ Simon Bell

Simon Bell

Address for Notice:

________________________________________

COMPANY:

American Ecology Corporation

By: /s/ Stephen A. Romano

Name: Stephen A. Romano

Title: Chairman, Board of Directors

Exhibit A

OTHER BENEFITS

1. Annual Equity Grants:

Employee shall receive three annual equity grants, with an aggregate value of $90,000, each year through 2012, provided Employee remains employed as of each Grant Date. Each “Grant Date” shall be on the 3rd full day of trading after announcement of the Company’s full fiscal year earnings for the preceding year (e.g., by late February or early March 2010, 2011 and 2012). The equity grants shall be priced based on the closing market price (“FMV”) of the Company’s common stock on the Grant Date. Each year’s equity grants shall be as follows:

Equity Grant	Price/Strike Price	Percent of Total Grant	Vesting
Restricted Stock	FMV@Grant Date	50%	12-month vesting
Stock Options	FMV@Grant Date	50%	36-month vesting

EX-10.73 6 usecology_10q-ex1073.htm EMPLOYMENT AGREEMENT - COOPER usecology_10q-ex1073.htm

EXHIBIT 10.73

EMPLOYMENT AGREEMENT

This EMPLOYMENT AGREEMENT (this “Employment Agreement” or this “Agreement”) is made and entered into effective as of the 1st day of January, 2010 (the “Effective Date”), by and between American Ecology Corporation, a Delaware corporation (the “Company”), and John Cooper (“Employee”). The Company and Employee are sometimes collectively referred to herein as the “Parties,” and individually, as a “Party.”

1.0. Employment.

Section 1.03. Capacity and Duties. Employee is and shall be employed in the capacity of Vice President and Chief Information Officer (CIO) of the Company and its subsidiaries as the executive with overall responsibility for the Company’s information systems function, and shall have such other duties, responsibilities and authorities as may be assigned to him from time to time by the Chief Executive Officer of the Company (the “CEO”), which are not materially inconsistent with Employee’s position(s) 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.

Section 1.06. Review of Performance. The CEO shall periodically review and evaluate with Employee his performance under this Employment Agreement.

2.0. Compensation.

Section 2.01. Base Salary. During the Employment Term, the Company shall pay to Employee an annual base salary (“Base Salary”) in an amount not less than One Hundred Forty Thousand and No/100 Dollars ($140,000.00). Such Base Salary shall be payable in accordance with the regular payroll practices and procedures of the Company.

Section 2.02. Incentive Pay. Employee shall participate in any cash incentive or bonus plans of the Company which are in effect from time to time, including the annual cash incentive payment opportunity granted to Employee under the Company’s Management Incentive Plan (“MIP” and together with any other cash incentive or bonus plans of the Company, the “Cash Incentive Plans”), subject to the terms and conditions thereof, at a 35% of Base Salary at a 100% of MIP target basis, which such MIP target shall be set annually by the Board of Directors of the Company (the “Board”). Anything to the contrary in this Agreement notwithstanding, the Company reserves the right to modify or eliminate any or all of its Cash Incentive Plans at any time. In the event of any consistency between the terms of this Employment Agreement and the terms of any Cash Incentive Plan, the Cash Incentive Plan shall govern and control.

3.0. Equity Ownership.

Section 3.01. Equity Ownership Requirement. In order to more closely align Employee’s interest in the Company with that of its stockholders, Employee and the Company agree as follows: (i) within 12 months of the Effective Date, Employee agrees to have acquired (through purchase, grant or exercise), at his cost and expense, Company common stock in an aggregate amount not less than $35,000, including any current ownership of Company common stock; (ii) within 24 months of the Effective Date, Employee agrees have acquired (through purchase, grant or exercise), at his cost and expense, Company common stock in an aggregate amount not less than $70,000, including any current ownership of Company common stock; (iii) within 36 months of the Effective Date, Employee agrees to have acquired (through purchase, grant or exercise), at his cost and expense, Company common stock in an aggregate amount not less than $105,000, each such dollar amount to be calculated based on the greater of cost basis or market; and (iv) Employee agrees to maintain such total equity ownership position throughout the remainder Employment Term (the foregoing requirements shall be collectively referred to as the “Equity Ownership Requirement”).

4.0. Termination of Employment.

(a) By either Party by delivering 60 days’ prior written notice of non-renewal as set forth in the Section 1.02 (Term of Employment);

(c) By the Company for Cause (as hereinafter defined) immediately upon written notice stating the basis for such termination;

(d) Due to the death or Disability (as hereinafter defined) of Employee;

(e) By Employee at any time without Good Reason (as hereinafter defined) upon 30 days’ written notice from Employee to the Company (or such shorter period to which the Company may agree;

(g) Upon the mutual agreement of the Company and Employee.

5.0. Payments Upon Termination of Employment.

6.0. Payment Upon Change of Control.

7.0. Compliance With Section 409A.

with this Section 7.0, together with interest, will be payable in a lump sum as soon as administratively practicable after the date of the Employee’s death and all other Deferred Compensation Separation Benefits will be payable in accordance with the payment schedule applicable to each payment or benefit. Each payment and benefit payable under this Agreement is intended to constitute separate payments for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations. The foregoing provisions are intended to comply with the requirements of Section 409A so that none of the severance payments and benefits to be provided hereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. The Employee and the Company agree to work together in good faith to consider amendments to this Employment Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to the Employee under Section 409A. During any period in which any Deferred Compensation Separation Benefits to Employee are deferred pursuant to the foregoing, Employee shall be entitled to interest on the deferred amount(s) at a per annum rate equal to the highest rate of interest applicable to six-month non-callable certificates of deposit with daily compounding offered by the following institutions: Citibank N.A., Wells Fargo Bank, N.A. or Bank of America, on the date of such separation from service.