Exhibit 10.4
AMENDMENT TO EMPLOYMENT
AGREEMENT
BY THIS AMENDMENT, dated
December 29, 2008, made and entered into by Casella Waste
Systems, Inc., a Delaware Corporation with a principal address
of 25 Greens Hill Lane, Rutland, Vermont 05701 (the
“Company”) and Paul Larkin, a current resident of
Manchester, Vermont (the “Employee”).
WHEREAS, Company and Employee are
parties to that certain Employment Agreement, dated January 9,
2008, wherein Employee is employed as President and Chief Operating
Officer of Company; and
WHEREAS, both Company and Employee
desire to amend the EA, effective January 1, 2009, to document
compliance with (and, as applicable, exemption from)
Section 409A of the Internal Revenue Code of 1986 and the
regulations issued thereunder, as each may be amended from time to
time (“Section 409A”);
NOW THEREFORE, in exchange for the
promises and mutual conditions contained herein, and other good and
valuable consideration, the parties hereto, intending to be legally
bound, do hereby agree as follows:
1.
Section 3.2, Incentive
Compensation , is amended to replace the last clause of the
last sentence thereof with the following, in order to clarify the
time of payment:
and at similar time frames during
the Agreement Term (and in any event no later than 2 ½
months after the end of the later of the Employer’s fiscal
year or the Employee’s taxable year during which the Bonus
was earned).
2.
Section 4.4.1(b),
Acceleration Payment , is amended to insert the following
sentence at the end thereof, in order to clarify the time and form
of payment:
If payable, the Acceleration Payment
shall be paid in an immediate lump sum.
3.
Section 4.4.1(d), Good
Reason , is amended as follows, in order to comply with the
safe harbor definition in Section 409A:
·
delete the phrase “the
occurrence of a Change of Control, accompanied by, or followed
within the twelve-month period after a Change in Control
by”;
·
delete the phrase “or which
require travel significantly more time-consuming than that required
at commencement of this Agreement”;
·
insert the word “base”
prior to the word “compensation”;
·
insert a new clause immediately
prior to the end of Section 4.4.1(d), to read as
follows: “, or a material change in the geographic
location at which the Employee must perform services for the
Company”; and
1
·
insert the following immediately
following the new clause: “; provided, in each case,
that the Employee did not consent to the condition and that the
Employee has given the Company notice within 90 days of the initial
existence of the condition and the Company has not remedied the
condition within 30 days after receiving such
notice.”
4.
Section 4.4.1(e),
Severance , is amended to read as follows in order to amend
the number of months of Severance and clarify the time and form of
payment:
“ Severance ”
means (i) one times the highest Base Salary that was paid to
the Employee at any time prior to termination by the Employee for
Good Reason or prior to when the Employee’s employment is
terminated by the Company other than for “Cause”; and
(ii) the Bonus targeted to be paid to the Employee pursuant to
Section 3.2 hereof (i.e. 70% of the amount of used in clause
(i)). Any such severance amounts calculated by reference to
Base Salary shall be paid bi-weekly or otherwise in accordance with
Company payroll practices, commencing immediately upon termination;
and any amounts calculated by reference to any Severance amounts
calculated by reference to shall be paid in a lump sum within sixty
(60) days of the date of Employee’s termination, in all cases
subject to any delay imposed under Section 20 and subject to
applicable withholding.
5.
Section 4.4.2 is amended as
follows:
·
to move clause (iii) to clause
(iv), and to insert clause (iii) to read:
the accelerated vesting at the time
of termination of any stock options or equity shares (such as
Restricted Stock Units), and
·
to insert the following sentence
immediately prior to the last sentence thereof, in order to clarify
the time of payment:
Any payment pursuant to clause
(iv) shall be made no later than December 31 of the year
following the year in which the Employee remits the related
taxes.
6.
Section 10, General
Release , shall be moved to Section 11, and all subsequent
sections shall be moved one section number accordingly.
7.
Section 10 shall be inserted as
Indemnification , and read as follows:
The Company agrees that except as
limited by the Company’s Certificate of Incorporation or
By-Laws (as either o
