Exhibit 10.24
EXECUTIVE EMPLOYMENT
AGREEMENT
This Executive Employment Agreement
between China Water & Drinks, Inc.
(“Company”), a wholly owned subsidiary of Heckmann
Corporation (“Parent”), and Xu Hong Bin
(“Xu”), is made on this 30th day of October 2008
(“Agreement”). Company and Xu hereby agree to the
employment of Xu by Company on the following terms and
conditions:
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1.
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Commencement
of Employment; Term of Agreement
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1.1
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Xu’s
employment under this Agreement will commence immediately following
the closing of the acquisition of China Water and Drinks, Inc., by
Heckmann Corporation and its merger subsidiary Heckmann Acquisition
II Corporation pursuant to Agreement and Plan of Merger and
Reorganization dated May 19, 2008, and any amendments thereto
(the “Merger Agreement”).
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1.2
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Xu’s
employment under this Agreement shall continue until
December 31, 2011 (the “Term”). The Term may be
modified or extended by mutual agreement.
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2.
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Duties and
Appointments
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2.1
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Xu shall serve
Company as a member of the Board of Directors and as Chief
Executive Officer and President. Xu’s duties shall include,
but not be limited to, those typical of the chief executive officer
and president of a bottled water and beverages company. Xu shall
also be appointed to serve as a Class I member of the Board of
Directors of Parent for the balance of 2008, and re-nominated at
Parent’s 2009 annual meeting of stockholders to serve an
additional three-year term.
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3.1
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Company will
pay Xu a salary in cash of $1 per year. Xu’s salary may be
changed by mutual agreement at any time during the Term.
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4.
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Bonus and
Stock Holdings
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4.1
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Xu is eligible
for a one-time payment from the contingent payment bonus pool
contemplated by clause 6.2(r) of the Merger Agreement (the
“Bonus Pool”). The Bonus Pool will consist of $15
million dollars if Company’s and Parent’s pro forma
consolidated net income for the fiscal year ending
December 31, 2009 equals or exceeds $90 million dollars, as
adjusted for stock compensation and expenses of the office of
Chairman of Parent, the bonuses themselves, and certain contingent
payments.
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Xu will
determine and recommend to Company and Parent the amount each
participating company officer, including himself, will receive from
the Bonus Pool. Any bonus under this clause will be paid in cash or
stock, or a combination thereof in the sole discretion of Parent.
Any bonus under this clause will be payable within 10 business days
after the filing of Parent’s Form 10-K for the period ending
December 31, 2009.
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The terms and
conditions of Xu’s common stock holdings in Parent delivered
at the closing of the Merger Agreement are governed by the Majority
Stockholder Consent Agreement dated May 19, 2008, Amendment
No. 1 thereto dated September 19, 2008, Amendment
No. 2 thereto dated September 29, 2008, and Amendment
No. 3 thereto dated October 30, 2008, collectively
hereinafter the “Xu Stockholder Consent Agreement” and
incorporated here in full.
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If the
conditions for the Bonus Pool are not met through no fault or
reasons caused by the actions or inactions of Xu (as determined in
the sole discretion of the Company), then with approval from the
Company and Parent’s Compensation Committee, and based on
successfully reaching agreed quarterly performance targets
established in accordance with U. S. Internal Revenue Code
Section 162(m) as amended, Xu may be awarded a one-time bonus
of USD $1 million in fiscal year 2010 (for services rendered in
2009 only) and when earned and payable quarterly, provided
that such targets build on and derive benefit from the
operating efficiencies and productivity milestones implemented in
respect of the $15 million Bonus Pool. A bonus, if any, for
services rendered in 2010 or 2011, will be by mutual agreement and
in the sole discretion of the Company and upon approval of
Parent’s Compensation Committee.
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4.2
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In order to be
eligible to receive any bonus or stock deliveries under this clause
4, Xu must be actively employed by Company on the date the bonus
and stock deliveries are earned, due, and payable.
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5.1
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Company shall
reimburse Xu in respect of all reasonable business expenses
necessarily incurred by Xu in the performance of his duties,
provided that any expense claims are supported by relevant
documentation and are made in accordance with Company’s
expenses policies. For all business-related travel, Xu will be
entitled to reimbursement for first class airfare and hotel of his
choosing, subject to Xu exercising reasonable judgment in incurring
such expenses.
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6.1
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Xu shall be
entitled to participate in, and receive benefits as permitted by
applicable law under, any pension benefit plan, welfare benefit
plan (including, without limitation, health insurance), vacation
benefit plan, or other executive benefit plan made available by
Company to its senior executives. Any such plan or benefit
arrangement may be amended, modified, or terminated by Company from
time to time with or without notice to Xu.
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7.
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Termination
of Employment
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7.1
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By
Xu . Xu may not terminate
his employment for any reason prior to full performance and receipt
and exchange of all deliveries under the Xu Stockholder Consent
Agreements. At any time thereafter, the parties may terminate
Xu’s employment upon mutually agreed terms and
conditions.
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At any time
thereafter, Xu may seek to terminate his employment by choice
without any “Good Reason” by giving the Company six
(6) months of notice in writing.
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At any time
thereafter, Xu may seek to terminate his employment with
“Good Reason” by giving to Company no less than sixty
(60) days notice in writing, as well as thirty (30) days
to cure the problem. If uncured, Xu receives the amount of
compensation reached by mutual agreement paid in a lump-sum, but no
less than an amount equal to his most recent six
(6) months’ salary and bonus.
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“Good
Reason” shall mean: (a) a material reduction in
Xu’s authority, duties, and responsibilities as Chief
Executive Officer and President of the Company, or (b) a
material breach of this Agreement.
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7.2
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By
Company . Company may not
terminate Xu’s employment for any reason prior to full
performance and receipt and exchange of all deliveries under the Xu
Stockholder Consent Agreements. At any time thereafter, the parties
may terminate Xu’s employment upon mutually agreed terms and
conditions.
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At any time
thereafter, Company may seek to terminate Xu’s employment by
choice without “Cause” by giving Xu not less than six
(6) months notice in writing. If so, Xu receives the amount of
compensation reached by mutual agreement paid in a lump-sum, but no
less than an amount equal to his most recent twelve
(12) months’ salary and bonus.
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At any time
thereafter, Company may seek to terminate Xu’s employment
with “Cause” by giving Xu no less than sixty
(60) days notice in writing, as well as thirty (30) days
to cure the problem. If uncured, Xu receives the amount of
compensation reached by mutual agreement paid in a lump-sum, but no
less than an amount equal to his most recent two
(2) months’ salary. “Cause” shall be deemed
to exist if Xu shall at any time: (a) commit a material breach
of any provision of this Agreement, (b) be guilty of gross
negligence in connection with or affecting the business or affairs
of the Company, or (c) be convicted of, or plead no contest
to, a felony criminal offense.
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7.3
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Death and
Disability . Xu’s
employment will au
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