exv10w8



 





EXHIBIT 10.8




AMENDMENT

TO

EXECUTIVE EMPLOYMENT AGREEMENT




     This Amendment to Executive Employment Agreement (“Amendment”), is between Heritage-Crystal
Clean, LLC, an Indiana limited liability company (“Company”), and Joseph Chalhoub, 101 Upper
Bellevue, Westmount, Quebec, Canada H3Y 1B7 (“Executive”), and amends an Executive Employment
Agreement between Company and Executive dated and effective as of August 24, 1999 (“Agreement”).
This Amendment shall be effective as of March 1, 2000.



     NOW THEREFORE, in consideration of the mutual covenants and promises contained in this
Amendment and the Agreement, the legal sufficient of which is acknowledged, Company and Executive
agree as follows:



     1. Amendment of Section 9(b). The first sentence of the second paragraph of Section
9(b), which reads as follows:




Executive shall also have the right to terminate this Agreement for “Good Reason”.


shall be deleted and replaced in its entirety with the following sentence:





Executive shall also have the right to terminate this Agreement for “Good Reason” and, in
such event, Executive shall be entitled to Severance, bonus, and COBRA reimbursement on the
same terms and in the same manner as for termination by the Company without Cause.



     2. No Further Amendments or Modifications. The terms and conditions in the Agreement
shall remain in full force and effect and are amended only to the extent specifically provided in
this Amendment.



     3. Counterparts. This Amendment maybe executed in counterparts, each of which shall be
deemed an original, and all of which together shall constitute one and the same agreement.



     IN WITNESS WHEREOF, the Company and Executive have duly executed and delivered this Amendment
effective as of the date written above.



	 	 	 	 	 	 	 
	COMPANY	 	EXECUTIVE
	 
	 	 	 	 	 	 
	Heritage-Crystal Clean, LLC	 	 	 	 
	 
	 	 	 	 	 	 
	By
	 	/s/ Joseph Chalhoub	 	/s/ Joseph Chalhoub	 	 
	 

	 	 

Joseph Chalhoub, President
	 	 

Joseph Chalhoub
	 	 






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EXECUTIVE EMPLOYMENT AGREEMENT




(Joseph Chalhoub)




     This EMPLOYMENT AGREEMENT (“Agreement”), between Heritage-Crystal Clean, LLC, an Indiana
limited liability company (“Company”), and Joseph Chalhoub, 101 Upper Bellevue, Westmount, Quebec,
Canada H3Y 1B7(“Executive”), dated as of the 24th day of
August, 1999 (“Effective Date”).



RECITALS:




     The following facts are true:



     A. The Company was organized on July 9, 1999, and Executive, through Canadian Numbered Federal
Corporation 3571645 Canada, Inc., wholly owned by Executive, has subscribed for Preferred and
Common Units in the Company pursuant to a Subscription Agreement between Chalhoub and the Company
and ancillary documents and instruments.



     B. The Company was organized to enter into the business (“Business”) of providing
environmental and fluid management services and parts washing and drum disposal services to small
and medium sized customers in part through the use of certain assets previously owned by the
“Crystal Clean” operating division of Heritage Transport, LLC, with the goal of expanding the
Business and providing and increasing financial benefits to the Company.



     C. The Executive is to be employed to serve the Company as its President and Chief Executive
Officer and is expected to make a major contribution to the profitability, growth and financial
strength of the Company.



     D. The Company will disclose to Executive, or place Executive in a position to have access to
or develop, “Trade Secrets” or “Confidential Information” of Company or its affiliates or their
customers or clients, and/or shall entrust Executive with business opportunities of Company or
Company’s affiliates, and/or shall place Executive in a position to develop business goodwill on
behalf of Company or Company’s affiliates, and there is a need and desire on the part of Company
and Executive to specify the parties’ rights and obligations with respect to the ownership and
protection of information, opportunities and goodwill.



     E. The Company considers the services of the Executive to be in the best interests of the
Company and is willing to employ the Executive on the terms and conditions set forth in this
Agreement.



     F. The Executive is willing to become an employee and to remain in the employ of the Company
upon the terms and subject to the conditions set forth in this Agreement.



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            NOW THEREFORE, in consideration of the mutual covenants and promises contained in this
Agreement, the legal sufficiency of which is hereby acknowledged, Company and Executive hereby
agree as follows:



Section 1. Employment. Company employs Executive, and Executive accepts
employment with the Company, for the period provided in Section
2 below, all upon the terms and conditions contained in this
Agreement.



Section 2. Employment Term. Employment under this Agreement shall commence
on the Effective Date and shall continue for three (3) years
(“Initial Term”). At the expiration date of the Initial Term,
the Agreement shall be subject to automatic renewal for
additional terms of one (1) year each (“Renewal Terms(s)”),
unless either party delivers notice of termination to the other
party no later than thirty (30) days prior to the first day of
the applicable Renewal Term. The Initial Term and any Renewal
Term(s) are referred to as the “Employment Term”.



Section 3. Duties. During the Employment Term, Executive shall render
services to the Company as President and Chief Executive
Officer of the Company and shall serve as a member of the Board
of Directors of the Company (“Board”). Subject to the other
terms hereof; Executive shall perform other employment duties
for the Company at other places and times as the Board may
reasonably prescribe, consistent with Executive’s position as
Chief Executive Officer. Except as may otherwise be approved in
advance by the Board with respect to memberships on the boards
of directors of; and other offices or positions in, companies
or organizations which, in the judgment of the Board, will not
present any conflict of interest with the Company or any of its
subsidiaries or materially affect the performance of
Executive’s duties and, except during vacation periods and
reasonable periods of absence due to sickness, personal injury
or other disability, Executive’s full and regular business time
throughout the Employment Term will be devoted to the Company.
Notwithstanding anything to the contrary in this Agreement,
Executive will maintain his residence in Westmount, Quebec or
other area selected by him with reasonable access to commercial
aviation and will conduct Company business from his residence.
Executive will periodically travel to the Company’s
headquarters location and various locations in pursuit of
Company business on an as needed basis. Except as may otherwise
be approved by the Board, Executive shall render services
exclusively to the Company during the Employment Term, and
shall use best efforts, judgment and energy, to improve and
advance the Business and interests of the Company in a manner
consistent with the duties of Executive’s position and the
common law duty of loyalty. Company shall provide Executive
with fully equipped office facilities and support staff so that
Executive may comfortably and efficiently perform duties, The
offices of Executive shall be maintained in clean and orderly
condition by Company and shall be suitable to Executive’s
position and adequate for the performance of duties. The
Company shall maintain office space for Executive and the
Executive’s staff in the Chicago, Illinois metropolitan area
throughout the Employment Term. Company shall provide Executive
with reception and secretarial services, records services, and
communications services. Company shall staff Executive’s office
with competent assistants, acceptable to Executive, to assist
Executive as needed from time to time in Executive’s duties.



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Section 4. Salary. As compensation for the services to be performed by
Executive during the Employment Term, Company shall pay or
shall cause to be paid to Executive, an annual base salary of
not less than Seventy Five Thousand Dollars (US$75,000) (“Base
Salary”). The Base Salary will be subject to annual review
based on growth and Company performance. The Agreement shall be
deemed amended to incorporate any new increased annual Base
Salary. Payment of Base Salary is subject to applicable
withholding and payroll taxes and other deductions required
under the Company employee benefit plans or as elected by
Executive. Base Salary is payable in installments in accordance
with the Company’s salary administration practices as they may
from time to time exist.



Section 5. Benefits. In addition to Base Salary, Executive shall:




	 	(a)	 	Bonus. Receive an annual bonus (“Bonus”) payable out of a cash bonus
pool made available to Executive and other key management personnel of the Company.
Each year, the total cash bonus pool payable for all participants shall be an amount
equal to ten percent (10%) of pre-tax net book income of the Company (treating the
Cumulative Preferred Return for any year after 2002 under the Operating Agreement of
the Company as an expense item regardless of its classification or treatment for tax
purposes or under generally accepted accounting principles);
	 
	 	(b)	 	Fringe Benefits. Participate in all employee fringe benefits, incentive
compensation programs or plans, and any pension and/or profit sharing plans that may be
provided by the Company for its key executive employees in accordance with the
provisions of any programs or plans;
	 
	 	(c)	 	Reimbursement. Receive reimbursement from the Company for all
reasonable, business-related expenses incurred by Executive, including company car,
cellular phone, travel and lodging and any other devices or services deemed necessary
by Executive;
	 
	 	(d)	 	Welfare Plans. Participate in any life or other similar insurance
plans, medical, dental and health plans, executive disability plans or other employee
welfare benefit plans that may be provided by the Company for its key executive
employees in accordance with the provisions of any plans;
	 
	 	(e)	 	Vacation. Receive paid vacation of four (4) weeks per year; and
	 
	 	(f)	 	Salary Continuation. Have salary continuation benefits in accordance
with any Company policy that may be applicable to key executive employees.





     For purposes of items (b)-(f) above (“Benefits”), Executive will be entitled to equivalent
benefits provided to other key executives of companies affiliated with The Heritage Group; an
Indiana partnership.



Section 6. Indemnification. Company agrees to indemnify and hold Executive harmless as to
any and all disputes, actions, or claims, including all costs and attorneys’ fees, asserted


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against Executive, arising in any respect (including, but not limited to,
hiring decisions) from accepting employment with the Company, as well as from
Executive’s acts taken at the direction of, and authorization from, the
Company, or arising from the ordinary operation of the Company, including
without limitation, liabilities arising under environmental and public health
laws with respect to the Company’s business operations or liabilities under
employment practices or discrimination laws arising from conduct other than
Executive’s willful misconduct.



Section 7. Death of Executive. In the event Executive’s
employment is terminated as a result of Executive’s
death, Executive’s spouse or, if the Executive is not
married at death, the estate of Executive, shall be
entitled to receive Executive’s Salary earned through
the date of death and to a ratable portion of Bonus
for the year in which death occurs.



Section 8. Disability of Executive. In the event Executive’s
employment is terminated as a result of Disability as
defined below, Executive shall be entitled to receive
Salary and Benefits as described in Sections 4 and 5
of this Agreement through the first (1st)
anniversary of the date of termination, offset by any
benefits under any disability Benefit provided by the
Company at its cost. In the event of Executive’s
Disability, Executive shall vest fully in Bonus for
the year in which Disability occurs. For purposes of
this Agreement, a “Disability” shall be deemed to
occur if a licensed physician reasonably selected by
Executive certifies in writing that Executive is
physically or mentally incapable of performing the
duties of employment under this Agreement.



Section 9. Termination.




	 	(a)	 	Termination by Company for Cause/Resignation by Executive Without
Cause.





     The Company may terminate the Executive’s employment for cause. For purposes of this
Agreement, the Company shall have “Cause” to terminate the Executive’s employment upon (i) the
continued willful or grossly negligent failure by the Executive to substantially perform the duties
of Employment under this Agreement (other than failure resulting from the Executive’s incapacity
due to physical or mental illness); (ii) the breach by Executive of the provisions of the
Non-Competition and Non-Disclosure Agreement between Executive and the Company; (iii) the
commission by Executive of any act of fraud, embezzlement or dishonesty with the Company’s assets;
(iv) the failure of Executive to adhere to the Company’s published policy regarding drug and
substance abuse; (v) the conviction of Executive of a felony offense involving moral turpitude,
controlled substances, securities laws violation, antitrust laws, tax or financial reporting or
physical violence; provided however, that “Cause” does not mean (A) bad judgment or negligence
other than habitual neglect of duty; (B) any act or omission believed by the Executive in good
faith to have been in, or not opposed to, the interest of the Company (without intent to personally
gain, directly or indirectly, a profit or advantage to which Executive was not legally entitled);
(C) any act or omission with respect to which a determination could properly have been made by the
Board that Executive met the applicable standard of conduct for indemnification or reimbursement
under the Company’s Operating Agreement or applicable law in effect at the time of the act or
omission; or (D) any act or omission with respect to which notice of termination of employment of
the Executive is given more than twelve (12) months



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after the earliest date a Director of the Company, not a party to the act or omission, knew of
the act or omission. Notwithstanding the foregoing, the Executive shall not be deemed to have been
terminated for Cause under (i) above without (y) delivery to the Executive of thirty (30) days
advance written notice of termination for Cause setting forth with particularity the reasons for
the Company’s intention to terminate for Cause, and (z) the opportunity for Executive to cure
asserted Cause within thirty (30) days of receipt of notice of termination. Voluntary resignation
by the Executive without cause shall be deemed as equivalent to termination by the Company for
Cause. In the event of a voluntary resignation or termination for Cause, Executive shall be
entitled to Salary and Benefits as described in Sections 4 and S of this Agreement through the date
of termination together with any other rights with regard to Benefits as may be provided by
applicable laws or regulations.




	 	(b)	 	Termination by the Company Without Cause/Resignation by Executive for Good
Reason.





     In the event Executive’s employment is terminated by the Company other than for Cause,
Disability, or death (Section 7 above), Executive shall be entitled to receive the greater of (i)
one (1) year of Base Salary or (ii) the Base Salary remaining to be paid through the date the
Agreement would have expired but for termination (“Severance”). Severance will be payable in
monthly installments or, at the option of the Company, in a lump sum within thirty (30) days
following the termination of Executive. In addition, Executive will be entitled to receive within
thirty (30) days following termination an amount equal to any bonus paid to Executive (or accrued
on the books of the Company as payable to Executive) out of the Company’s annual bonus pool for the
one (1) year most recently completed. Executive shall also be entitled to full reimbursement for
the cost of maintaining COBRA continuation coverage or its equivalent for the greater of one (1)
year, or until Executive is filly covered by a subsequent employer health care plan. The Company
may terminate Executive’s employment without Cause upon ninety (90) days prior written notice to
Executive. Termination of the Executive’s employment for any reason, other than as specified as for
Cause, Disability, or death, as defined in this Agreement, shall constitute termination of this
Agreement “without Cause”.



     Executive shall also have the right to terminate this Agreement for “Good Reason”. For
purposes of this Agreement, Executive shall have “Good Reason” to terminate the Executive’s
employment upon the failure by the Company to cure a breach of this Agreement, Notwithstanding the
foregoing, the Executive shall not be deemed to have terminated this Agreement for Good Reason
without (a) delivery to the Company of thirty (30) days advance written notice of termination for
Good Reason setting forth with particularity the reasons for the Executive’s intention to terminate
for Good Reason, and (b) the opportunity for the Company to cure any breach within thirty (30) days
of receipt of notice of termination. Resignation for Good Reason shall include the situation where
Executive determines in good faith that status or responsibilities with the Company has or have
diminished either by action of the Board or subsequent to a Change in Control as defined in Section
16 below, and Executive has given notice to the Company of resignation for this reason within one
(1) year after a Change in Control. In the event of termination without Cause, or resignation for
good reason, Executive, if requested by the Company, shall continue to render services during the
thirty (30) day notice period and shall receive Base Salary and Benefits through the date of
cessation of service.



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Section 10. Proprietary and Confidential Information. Executive
acknowledges that the Company possesses and will continue to
possess information that has been created, discovered or
developed by, or otherwise become known to it (including,
without limitation, information created, discovered, developed
or made known by Executive during the Employment Term) or in
which property rights have been or may be assigned or
otherwise conveyed to the Company which information has
commercial value in the business and is treated by the Company
as confidential (“Confidential Information”). Executive
further acknowledges and agrees that the success of the
Company’s business depends, in part, upon an in-depth
knowledge of the needs of the Company’s customers and clients
and serving these needs through frequent contacts, and that
the Company has invested substantial time, money and human
resources to develop those relationships. The foregoing
provisions supplement the terms of the Non-Competition and
Non-Disclosure Agreement between Executive and the Company.



Section 11. Non-Disclosure. Executive shall not without the prior written
consent of the Board (i) use for Executive’s benefit or
disclose at any time during or after the Employment Term, or
thereafter, except as required by the duties of his employment
with the Company and/or its subsidiaries, any trade secret
information obtained or developed by Executive while in the
employ of the Company with respect to any customers,
suppliers, products, employees, financial affairs, business
methods or services of the Company or any of its subsidiaries,
or (ii) take with Executive upon leaving the employ of the
Company any document or paper or digitized medium which is or
contains “trade secret” information as defined in the Uniform
Trade Secrets Act. The foregoing provisions supplement the
terms of the Non-Competition and Non-Disclosure Agreement
between Executive and the Company. Any information in the
public domain through no fault of the Executive or reasonably
discoverable without access to internal documents or
information shall not be considered “confidential information”
or “trade secret information” for purposes of this Agreement.



Section 12. Return of Property. Upon termination of Executive’s employment
for any reason, or at any other time the Company requests in
writing, Executive shall immediately deliver to the Company
all memoranda, notes, plans, records, reports and other
documents (and copies thereof) and other property in
Executive’s possession or control relating to the business of
the Company or any of its subsidiaries.



Section 13. Other Agreements. Executive and the Company are entering into
separate agreements concerning Executive’s relationship to the
Company, including a Non-Competition and Non-Disclosure
Agreement, a Members Agreement, an Operating Agreement, and a
Unit Purchase and Sale Agreement.



Section 14. Nonalienation. Except as otherwise required by law, no right
to receive payments under this Agreement shall be subject to
anticipation, commutation, alienation, sale, assignment,
encumbrance, charge, pledge, bankruptcy or hypothecation or o
exclusion, attachment, levy or similar process or assignment
by operation of law, and any attempt, voluntary or
involuntary, to effect any such action shall be null, void and
of no effect,


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Section 15. Assignment. This Agreement is personal to Executive and
Company and cannot be assigned by either party without consent
of the other. In the event of Executive’s consent, this
Agreement shall be binding upon and inure to the benefit of
(a) the Company and its successors and assigns and any
purchaser of the Company or substantially all of the assets of
the Company and (b) Executive, and designees and estate.



Section 16. Change in Control. A “Change in Control” occurs if a person or
business organization not an Initial Member of the Company (as
that term is defined in the Operating Agreement of the
Company) or an affiliate of an Initial Member becomes the
owner of forty percent (40%) or more of the Preferred or
Common Units of the Company.



Section 17. Notices. Any notice required or permitted to be given under
this Agreement shall be sufficient if in writing and will be
deemed to have been given when delivered in person (to
Executive if notice is for Executive) or delivered by courier,
postage prepaid, to Executive at the Executive’s home address
as set forth below, or another address as Executive shall have
designated in writing, or if to the Company, to the attention
of the Chairman of the Board at the address set forth below,
or another address as the Chairman shall have designated in
writing:



	 	 	 	 	 
	 

	 	If to Executive:
	 	Joseph Chalhoub

101 Upper Bellevue

Westmount, Quebec Canada H3Y 1B7
	 
	 	 	 	 
	 

	 	 	 	cc:
	 
	 	 	 	 
	 

	 	 	 	Brent Amato, Esq.

Robinson, Pluymert, Piercey & MacDonald, Ltd.

2300 Barrington Road; Suite 200

Hoffman Estates, Illinois 60195
	 
	 	 	 	 
	 

	 	If to Company:
	 	Heritage-Crystal Clean, LLC

Attn: Fred M. Fehsenfeld, Jr.,

Chairman of the Board

5400 West 86th Street

Indianapolis, IN 46268
	 
	 	 	 	 
	 

	 	 	 	cc:
	 
	 	 	 	 
	 

	 	 	 	John W. Boyd, Esq.

Johnson, Smith, Pence & Heath, LLP

1800 One Indiana Square

Indianapolis, IN 46204






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Section 18. Governing Law/Attorney Fees. This Agreement shall be governed
by and construed in accordance with the laws of the State of
Indiana. The parties agree to venue and jurisdiction in the
state and federal courts located in Marion County, Indiana and
Cook County, Illinois, which shall be the courts of exclusive
jurisdiction and venue over any enforcement of this Agreement.
In the event of a breach of this Agreement, the non-breaching
party shall be entitled to recover from the breaching party
all reasonable costs and attorney fees incurred in enforcing
the terms of this Agreement.



Section 19. Severability. If any provision of this Agreement shall be
determined to be invalid, illegal or unenforceable in whole or
in part, neither the validity of the remaining part of the
provision nor the validity of any other provision of this
Agreement shall in any way be affected.



Section 20. Waiver. Failure to insist upon strict compliance with any of
the terms, covenants or conditions of this Agreement shall not
be deemed a waiver of the term, covenant or condition, nor
shall any waiver or relinquishment of any right or power under
this Agreement at any one or more times be deemed a waiver or
relinquishment of the right or power at any other time or
times.



Section 21. Entire Agreement; Modifications; and Conditions. This
Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof and supersedes all prior
agreements, oral and written, between the Company and
Executive with respect to Executive’s employment. This
Agreement may be modified or amended only by an instrument in
writing signed by both the Company and Executive.



Section 22. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
agreement.



Section 23. Construction of Agreement. The parties hereby confirm and
agree that this Agreement is the result of negotiation and
compromise, and that in interpreting this Agreement neither
party shall be considered to be the drafter of the document,
and that the language should not be strictly construed against
either party. Instead, the language of the Agreement should be
interpreted consistent with the ordinary and reasonable
meaning of the words used.


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     IN WITNESS WHEREOF, the Company and Executive have duly executed and delivered this Agreement
as of the day and year first above written.



	 	 	 	 	 
	 	EXECUTIVE	 
	 
	 	/s/ Joseph Chalhoub	 
	 	 	 
	 	Joseph Chalhoub	 
	 	 

Dated: August 24, 1999



COMPANY



Heritage-Crystal Clean, LLC

 	 
	 
	 	By:  	/s/
Fred M. Fehsenfeld, Jr.	 
	 

	 	 

	 	 	Fred M. Fehsenfeld, Jr. 	 
	 	 	Chairman 	 
	 
	 	Dated: August 24, 1999	 




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