EXECUTIVE EMPLOYMENT
AGREEMENT
This Employment
Agreement (the “Agreement”) is dated as of
July 22, 2008 by and between WASTE SERVICES, INC., a Delaware
corporation (the “Company”) and BRIAN A. GOEBEL (the
“Executive”):
WHEREAS, the
Company desires to employ Executive in an executive capacity and
Executive desires to enter into the Company’s employ upon the
terms and subject to the conditions set forth herein.
NOW, THEREFORE,
in consideration of the mutual promises and agreements set forth
herein, the receipt and adequacy of which are hereby acknowledged,
the parties hereto agree as follows:
The Company
shall employ Executive, and Executive shall be employed by the
Company, upon the terms and subject to the conditions set forth in
this Agreement, effective as of July 22, 2008 (the
“Effective Date”); provided , however
that as a condition to effectiveness of this Agreement, the Company
and Executive shall have entered into an Indemnification Agreement
substantially in the form of Exhibit A attached
hereto.
The period of
Executive’s employment under this Agreement (the
“Employment Term”) shall begin on the Effective Date
and shall continue until Executive’s employment is terminated
in accordance with Section 5 below.
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3.
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DUTIES AND
RESPONSIBILITIES.
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(a)
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Executive shall serve as Senior Vice
President, Controller and Chief Accounting Officer of the Company
and shall report to the Chief Financial Officer of the Company. In
such capacity, Executive shall have responsibility and authority
and shall perform the duties necessary to carry out those
responsibilities and exercise that authority, as may be assigned to
Executive from time to time by the Chief Financial Officer of the
Company.
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(b)
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During the Employment Term,
Executive shall devote his full time and attention during normal
business hours to the affairs of the Company and use his best
efforts to perform faithfully and efficiently his duties and
responsibilities; provided , however , that subject
to the limitations of Section 8 hereof and to the prior
approval of the Chief Financial Officer of the Company, Executive
may serve on corporate, industry, civic or charitable Boards or
committees as long as such activities do not interfere with the
performance of Executive’s responsibilities to the Company.
Executive agrees to act at all times in the best interests of the
Company and to take no action or make any statement, oral
or
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written, which
could reasonably be expected by Executive to injure the
Company’s business, financial condition, results of
operations, prospects, interests or reputation.
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(c)
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Executive agrees to comply at all
times during the Employment Term with all applicable policies,
rules, codes and regulations of the Company in effect from time to
time, including, without limitation, all applicable codes of ethics
or conduct and all policies regarding trading in the
Company’s common stock.
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4.
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COMPENSATION AND
BENEFITS.
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(a)
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BASE SALARY. During the Employment
Term, the Company shall pay Executive a base salary at the annual
rate of $236,900, or such higher rate as may be determined from
time to time by the Board of Directors or a duly authorized
committee thereof (such amount, as increased from time to time, the
“Base Salary”). Such Base Salary shall be paid on the
Company’s regular pay days in accordance with the
Company’s standard payroll practice for executive officers,
subject only to such payroll and withholding deductions as may be
required by law and other deductions applied generally to employees
of the Company for insurance and other employee benefit plans. For
all purposes under this Agreement, Executive’s Base Salary
shall include any amount which is deferred under any nonqualified
plan or arrangement of the Company.
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(b)
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INCENTIVE COMPENSATION.
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(i)
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ANNUAL CASH BONUS. In addition to
the Base Salary, Executive shall be eligible for an annual cash
bonus (either pursuant to a bonus or incentive plan or program of
the Company or otherwise) for each fiscal year during the
Employment Term. Executive’s target annual cash bonus will be
equal to 60% (the “Target Bonus Rate”) of his Base
Salary in effect at the beginning of the relevant fiscal year. The
amount of the annual cash bonus, which may be higher or lower than
the Target Bonus Rate, shall be determined by the Board of
Directors or a duly authorized committee thereof based upon
applicable corporate and individual performance targets established
by the Board of Directors or such committee in its sole discretion
(the “Annual Bonus”). For all purposes under this
Agreement, Executive’s Annual Bonus shall include any amount
which is deferred under any nonqualified plan or arrangement of the
Company.
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(ii)
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LONG-TERM OR SUPPLEMENTAL INCENTIVE
COMPENSATION. Executive shall be eligible to participate in any
supplemental and/or long-term incentive compensation plans or
programs (which may consist of stock options, restricted stock,
long-term cash awards or other forms of long-term or supplemental
incentive compensation) generally made available to full-time
senior executive officers of the Company.
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(c)
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BENEFIT PLANS. Executive shall be
eligible to participate in and receive benefits under all
retirement, health and welfare benefit plans, programs and
arrangements which are
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from time to
time available to full-time senior executive officers of the
Company in accordance with the terms and conditions of such plans,
programs and arrangements in effect from time to time. Such benefit
plans, programs and arrangements will include family medical,
family dental and family vision benefit plans and short-term and
long-term disability plans, and may include, without limitation,
life insurance plans, accidental death insurance plans, travel
accident insurance plans, savings and retirement plans and pension
plans (all such benefit plans, the “Benefit Plans”). At
his option, Executive may pay directly the premiums for coverage
under the above-mentioned disability plans and have the Company pay
to him, as additional income, an amount equal to the amount of
those premiums. Executive agrees to submit to a physical
examination from time to time as requested by the Company to
facilitate Executive’s participation in one or more Benefit
Plans. The Company may terminate or reduce benefits under any such
plans, programs or arrangements to the extent such reductions apply
uniformly to all full-time senior executive officers of the
Company, and Executive’s benefits shall be reduced or
terminated accordingly. The Company’s obligations under this
Section 4(c) are expressly conditioned on Executive and his family
dependents taking all reasonable actions (including but not limited
to enrolling in all health and welfare benefit programs, plans and
arrangements which are from time to time available to the
Company’s full-time senior executive officers as and when
Executive and his family dependents become eligible to participate
in such programs, plans and arrangements) and providing all
information as the Company shall reasonably request and as is
necessary for the Company to fulfill such obligations.
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(d)
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VACATION. In addition to normal
statutory holidays recognized by the Company, Executive shall be
entitled to the greater of (a) four weeks of paid vacation for
each fiscal year during the Employment Term and (b) such other
amount of paid vacation as may be afforded executive officers under
the Company’s policies in effect from time to time
(“Vacation Time”).
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(e)
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EXPENSE REIMBURSEMENT. The Company
shall promptly reimburse Executive for travel and other
out-of-pocket expenses incident to his position in accordance with
the Company’s customary practices applicable to full-time
senior executive officers. To the extent that these expense
reimbursements are reportable as taxable income, they will be
grossed up to include the tax due on them.
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(f)
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FRINGE BENEFITS AND PERQUISITES.
Executive shall be eligible to participate in and receive benefits
under all fringe benefit plans, practices, policies and programs of
the Company to the same extent, and subject to the same terms and
conditions, as those arrangements are made available to full-time
senior executive officers of the Company.
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5.
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TERMINATION OF
EMPLOYMENT.
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Executive’s employment under this
Agreement may be terminated under any of the circumstances set
forth in this Section 5. Upon termination, Executive (or his
beneficiaries or
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estate as the
case may be) shall be entitled to receive the compensation and
benefits described in Section 6 and, if applicable,
Section 7 below.
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(a)
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DEATH. Executive’s employment
hereunder shall terminate automatically upon Executive’s
death.
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(b)
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TOTAL DISABILITY. The Company may
terminate Executive’s employment hereunder, by written notice
to Executive delivered in accordance with Sections 5(g) and 16
hereof, upon a determination pursuant to this Section 5(b) that
Executive is “Totally Disabled.” For purposes of this
Agreement, For the purposes of this provision, “Totally
Disabled” shall have the same meaning as it has under the
long-term disability policy covering Executive pursuant to
paragraph 4(c) herein. Executive’s receipt of disability
benefits under the Company’s long-term disability plan shall
be deemed conclusive evidence of Total Disability for purposes of
this Agreement.
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(c)
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TERMINATION BY THE COMPANY FOR
CAUSE. The Company may terminate Executive’s employment
hereunder for “Cause” at any time, by written notice to
Executive delivered in accordance with Sections 5(g) and 15
hereof.
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(i)
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For
purposes of this Agreement, the term “Cause” shall mean
any of the following: (A) conviction of a crime (including
conviction on a nolo contendre plea) involving the commission by
Executive of a felony or of a misdemeanor involving, in the good
faith judgment of the Board of Directors, fraud, dishonesty or
moral turpitude; (B) Executive’s deliberate and
continual refusal to perform the duties and responsibilities
assigned to Executive under this Agreement (other than as a result
of vacation permitted under this Agreement, sickness, illness or
injury); (C) fraud or embezzlement by Executive, determined in
accordance with the Company’s normal, internal investigative
procedures consistently applied; (D) gross misconduct or gross
negligence by Executive in connection with the business of the
Company or an Affiliate (as defined herein) unless Executive
reasonably believed, in good faith, that his acts or omissions were
in or not opposed to the best interests of the Company (without
intent of Executive to gain therefrom, directly or indirectly, a
profit to which he was not legally entitled); or (E) any
material breach by Executive of any of the provisions of
Section 8 of this Agreement or of any provisions of the
Confidentiality and Proprietary Information Agreement (as defined
herein); provided, however, that the occurrence of an act or
omission covered by clauses (B), (D) or (E) of this
paragraph 5(c)(i) shall not constitute “Cause” if
Executive remedies such act or omission within ten
(10) business days after delivery by the Company of written
notice to Executive in accordance with Section 15 hereof
specifying in reasonable detail the facts and circumstances
believed by the Company to constitute such
“Cause.”
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(ii)
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Any
determination of Cause under this Agreement shall be made by
resolution duly adopted by the affirmative vote of at least
two-thirds of the members of the
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Board of
Directors (not including Executive if Executive is a member of the
Board of Directors) at a meeting of the Board of Directors called
and held for that purpose; provided that Executive shall
have been given written notice of such meeting by certified mail at
least ten (10) business days prior to the meeting and shall
have been given the opportunity to be heard by the Board of
Directors before such resolution is passed. The failure by the
Company to follow the procedures set forth in this
Section 5(c)(ii) shall result in the termination of the
Executive’s employment being deemed to be a termination by
the Company without Cause.
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(d)
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TERMINATION BY EXECUTIVE FOR GOOD
REASON. Executive may terminate his employment hereunder for Good
Reason after delivery by Executive of written notice to the Company
in accordance with Sections 5(g) and 15 hereof within sixty
(60) days after the occurrence of a Good Reason Event (as
hereinafter defined). For purposes of this Agreement, “Good
Reason” means the occurrence of any of the following events
(each a “Good Reason Event”) without Executive’s
written consent during the Employment Term:
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(i)
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A
change in Executive’s responsibilities or titles or any other
action by the Company which represents a material diminution of
Executive’s position, status or authority, except in
connection with or as a result of the termination of
Executive’s employment pursuant to any provision of this
Section 5 (a “Dimunition”); provided ,
however that such Dimunition shall not constitute
“Good Reason” or a “Good Reason Event” if
the Company remedies such Dimunition within ten (10) business
days after delivery by Executive of written notice to the Company
in accordance with Section 15 hereof specifying in reasonable
detail the facts and circumstances believed by Executive to
constitute such Dimunition.
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(ii)
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A
reduction by the Company in Executive’s Base
Salary.
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(iii)
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A
material breach by the Company of Section 4(c) hereof;
provided , however that such a breach shall not
constitute “Good Reason” or a “Good Reason
Event” if the Company remedies such breach within ten
(10) business days after delivery by Executive of written
notice to the Company in accordance with Section 15 hereof
specifying in reasonable detail the facts and circumstances
believed by Executive to constitute a material breach of
Section 4(c).
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(iv)
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The
failure by the Company to pay Executive any material amount of his
Base Salary, or any material amount of other compensation, that is
due and payable under this Agreement within ten (10) business
days after Executive makes written demand for such
amount.
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(v)
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The
failure by the Company to enter into a written agreement with any
entity that purchases all or substantially all of the assets of the
Company or any entity into which the Company is merged (each a
“Successor”) pursuant to which such
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Successor
agrees to assume all of the obligations of the Company under this
Agreement at and effective as of the closing of such sale of assets
or merger.
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(e)
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VOLUNTARY TERMINATION BY EXECUTIVE.
Executive may terminate his employment hereunder without Good
Reason at any time during the Employment Term after providing
thirty (30) days’ written notice to the Company
delivered in accordance with Sections 5(g) and 15
hereof.
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(f)
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TERMINATION BY THE COMPANY WITHOUT
CAUSE. At any time during the Employment Term, the Company may
terminate Executive’s employment hereunder without Cause by
written notice to Executive delivered in accordance with Sections
5(g) and 15 hereof. For purposes of this Agreement,
Executive’s employment will be deemed to have been terminated
“Without Cause” if Executive is terminated by the
Company for any reason other than Death pursuant to Section 5(a),
Total Disability pursuant to Section 5(b), or Cause pursuant
to Section 5(c).
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(g)
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NOTICE OF TERMINATION. Any
termination of Executive’s employment by the Company for
Cause pursuant to Section 5(c), without Cause pursuant to
Section 5(f), or as a result of Executive’s Total
Disability pursuant to Section 5(b), or by Executive for Good
Reason pursuant to Section 5(d), shall be communicated by
Notice of Termination to the other party hereto given in accordance
with this Agreement. For purposes of this Agreement, a
“Notice of Termination” means a written notice which
(i) indicates the specific termination provision in this
Agreement relied upon, (ii) sets forth in reasonable detail
the facts and circumstances claimed to provide a basis for
termination of Executive’s employment under the provision so
indicated, and (iii) specifies the effective date of
termination, if such date is other than the date of receipt of such
notice (which effective date shall not be (A) less than ten
(10) business days after the giving of such notice in the case of
termination by Executive for Good Reason or (B) more than
15 days after the giving of such notice in all other cases).
Any voluntary termination of Executive’s employment by
Executive pursuant to Section 5(e) shall be communicated by written
notice to the Company specifying (i) that Executive wishes to
terminate his employment with the Company pursuant to Section 5(e)
hereof and (ii) indicating the effective date of termination
(which effective date shall not be less than 30 days after the
giving of such notice).
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6.
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COMPENSATION AND BENEFITS FOLLOWING
TERMINATION OF EMPLOYMENT.
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In the event
that Executive’s employment hereunder is terminated,
Executive shall be entitled to the following compensation and
benefits upon such termination:
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(a)
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COMPENSATION AND BENEFITS PAYABLE
FOLLOWING TERMINATION FOR ANY REASON. The following compensation
and benefits shall be payable upon termination of Executive’s
employment under this Agreement for any reason:
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(i)
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Executive or his beneficiaries or
estate shall be entitled to receive, within fourteen (14) days
after the effective date of termination, any accrued but unpaid
Base Salary for services rendered by Executive to the Company prior
to the date of termination, any accrued but unpaid expenses
required to be reimbursed under this Agreement, and cash
compensation (at a rate per day equal to the Base Salary divided by
the number of business days in the relevant year) for any accrued
Vacation Time that remained unused by the Executive at the time of
termination; and
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(ii)
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Any
earned benefits to which Executive (or his beneficiaries or estate)
may be entitled pursuant to the plans, policies and arrangements
referred to in Sections 4(b), 4(c) and 4(g) hereof shall be
determined and paid in accordance with the terms of such plans,
policies and arrangements. In the case of compensation previously
deferred by Executive, all amounts previously deferred and not yet
paid by the Company shall be paid to Executive (or his
beneficiaries or estate) within fourteen (14) days after the
effective date of termination unless such payment is inconsistent
with the terms of any payment election made by Executive with
respect to such deferred compensation.
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(b)
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TERMINATION BY REASON OF DEATH. In
the event that Executive’s employment is terminated by reason
of Executive’s death, the Company shall pay Executive’s
estate the following compensation and benefits in addition to the
compensation and benefits provided for in Section 6(a)
above:
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(i)
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Executive’s estate shall be
entitled to be paid:
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(A)
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Executive’s Base Salary at the
rate in effect immediately prior to Executive’s date of death
on the Company’s regular pay days for a period of two
(2) years from the effective date of termination as if his
employment had continued until the end of such two (2)-year period;
and
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(B)
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an
aggregate amount equal to two (2) times the average of the
Annual Bonuses paid to Executive in the two (2) most recently
completed fiscal years preceding the effective date of termination
, without regard to whether the payment of all or any
portion of such Annual Bonus has been deferred (such average being
hereinafter referred to as the “Bonus Average”), which
shall be paid in equal installments on the Company’s regular
pay days over the course of twenty-four (24) months from the
effective date of termination; provided , however ,
that if at the time of termination Executive has not been employed
by the Company for two fiscal years, the Bonus Average shall be
deemed for all purposes of this Agreement to equal
Executive’s Target Bonus Rate multiplied by his Base Salary
at the rate in effect immediately prior to the effective date of
termination. The Company may purchase insurance to cover all or any
part of the obligations set forth in this Section 6(b)(i) and
Executive agrees to submit to a physical examination from time to
time to facilitate the
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procurement or
renewal of such insurance. Any proceeds of such insurance paid to
Executive or his beneficiaries or estate shall be considered a
portion of the payments required to be made to Executive pursuant
to this Section 6(b)(i) and shall not be in addition
thereto.
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(ii)
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Executive’s dependents shall
be entitled to continue to receive medical, dental and vision
insurance coverage at least equal in type and amount to that made
available to dependents of full-time senior executives of the
Company immediately prior to Executive’s death for a period
of two (2) years from the effective date of termination, or
until Executive’s dependents become eligible for
substantially equivalent employer-provided health insurance
benefits from any other person or business entity, whichever occurs
first. In the event that participation in any such plan, program or
arrangement of the Company is prohibited, the Company will arrange
to provide benefits substantially similar to those benefits which
Executive’s dependents would have been entitled to receive
under such plan, program or arrangement for such period.
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(iii)
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All
of Executive’s then outstanding options to purchase shares of
the Company’s common stock shall be vested and exercisable in
accordance with the terms of the stock option plan of the Company
pursuant to which such options were granted (the “Governing
Stock Option Plan”) as then in effect.
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(c)
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TERMINATION BY REASON OF TOTAL
DISABILITY. In the event that Executive’s employment is
terminated by reason of Executive’s Total Disability pursuant
to Section 5(b) hereof, the Company shall pay Executive the
following compensation and benefits in addition to the compensation
and benefits provided for in Section 6(a) above:
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(i)
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Subject to Section 6(c)(ii)
below, Executive shall be entitled to be paid:
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(A)
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his
Base Salary at the rate in effect immediately prior to the
effective date of termination on the Company’s regular pay
days for a period of two (2) years from the effective date of
termination as if his employment had continued until the end of
such two (2) year period; and
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(B)
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an
aggregate amount equal to two (2) times the Bonus Average,
which shall be paid in equal installments on the Company’s
regular pay days over the course of twenty-four (24) months
from the effective date of termination.
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(ii)
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Whenever compensation is payable to
Executive under Section 6(c)(i) during a period in which he is
partially or totally disabled, and such disability would (except
for the provisions hereof) entitle Executive to disability income
or salary continuation payments from the Company according to the
terms of any plan or program presently maintained or hereafter
established by the Company, the disability income or salary
continuation paid to Executive pursuant to any such
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plan or program
shall be considered a portion of the payments required
to
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