Exhibit
10.78
AMENDMENT TO CHANGE OF CONTROL
AGREEMENT
(Tier 2
Employees)
THIS
AMENDMENT to the Change
of Control Agreement, dated as of February 5, 2007 (the
“Agreement”) is made as of this 31st day of December,
2008 by and between American Ecology Corporation, a Delaware
corporation (the “Company”) and John M. Cooper (the
“Employee”).
WHEREAS , the Company and the Employee desire to amend
the Agreement to comply with the final regulations issued under
Section 409A of the Internal Revenue Code of 1986, as amended (the
“Code”); and
WHEREAS , capitalized terms not otherwise defined herein
shall have the meanings ascribed to them by the
Agreement.
NOW,
THEREFORE , the Company
and the Employee, intending to be legally bound, hereby amend the
Agreement as follows, effective as of December 31, 2008:
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Section 1.1 of
the Agreement is hereby amended and restated in its entirety to
read as follows:
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“1.1
Effect of Agreement . This Agreement shall
commence on the Effective date and shall remain in full force and
effect so long as Employee is employed by Company; provided,
however, that upon the Employee’s termination of employment
pursuant to Section 3.1(ii) hereof this Agreement shall renew for a
period beginning on the date of such Termination Event and expiring
upon the effective date of the Change of Control; and, provided,
further, that the expiration of this Agreement shall not affect
Employee’s right to any payment to which Employee is entitled
hereunder.
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Section 3.1
hereby amended and restated in its entirety to read as
follows:
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“3.1
Involuntary Termination Upon or Following Change of
Control . In the event Employee’s
employment with the Company or one of its subsidiaries is
involuntarily terminated at any time by the Company without Cause
either (i) at the time of or within twelve (12) months
following the occurrence of a Change of Control, or [(ii) at any
time prior to a Change of Control, if such termination is at the
request of an Acquiror (as defined below),] then such termination
of employment will be a Termination Event and the Company shall pay
Employee the compensation and benefits described in Article
4 . An ‘ Acquiror ’ is either a
person or a member of a group of related persons representing such
group that in either case obtains effective control of the Company
in a transaction or a group of related transactions constituting
the Change of Control.”
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Section 3.3 is
hereby amended and restated in its entirety to read as
follows:
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“3.3
Voluntary Termination . Employee may
voluntarily terminate his or her employment with the Company and/or
its subsidiaries at any time. In the event (i) Employee
voluntarily terminates his or her employment for any reason, or
(ii) Employee’s employment terminates on account of either
death of physical or mental disability, then such termination of
employment will not be a Termination Event, Employee
will not be entitled to receive any payments or
benefits under the provisions of this Agreement, and the Company
will cease paying compensation or providing benefits to Employee as
of the Employee’s termination date; provided, however
, that pursuant to Company policy, the Employee’s health
benefits shall extend to the last day of the calendar month in
which employment termination occurs; and provided, further ,
that the Company shall pay Employee (or his or her estate or
personal representative, in the event of Employee’s death)
the Accrued Obligations in a single, lump-sum payment within
forty-five (45) days following the date of such employment
termination.”
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Section 4.2 is
hereby amended and restated in its entirety to read as
follows:
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