EXHIBIT 10.4(a)(i)
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AMENDMENT
TO
EMPLOYMENT AGREEMENT
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THIS AMENDMENT (the "Amendment"), effective as of November 26, 2001, to
the Employment Agreement by and between Xxxxx X. Xxxx (the "Employee") and
Covanta Energy Corporation (f/k/a Xxxxx Corporation) (the "Company"), dated as
of October 1, 1998 (the "Agreement"), is by and between the Company and the
Employee.
WITNESSETH THAT
WHEREAS, the Company and the Employee are parties to the Agreement; and
WHEREAS, the parties wish to amend the Agreement to reflect the change
from the Xxxxx Corporation to Covanta Energy Corporation, and to revise the
definition of Change in Control;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the Company and the Employee hereby agree to amend the
Agreement in the following respects, and only in the following respects, with
all other terms and conditions remaining in full force and effect as previously
agreed in the Agreement:
1. All references in the Agreement to Xxxxx Corporation are hereby amended
to refer to Covanta Energy Corporation.
2. Appendix A to the Agreement shall be amended to read as follows:
"The following definition of Change in Control shall apply for purposes
of Paragraph 10(f) of the Agreement:
Change in Control. Change in Control of the Company shall be deemed to
have occurred as of the first day any one or more of the following
conditions shall have been satisfied:
(a) the acquisition by any person or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) of beneficial ownership (within the meaning of Rule
13d-3 under the Exchange Act) of 25% or more of either (i) the then
outstanding shares of common stock of the Company or (ii) the combined
voting power of the then outstanding voting securities of the Company
entitled to vote generally in the election of directors, provided that
the following acquisitions shall not constitute a Change in Control: (i)
any acquisition directly from the Company (excluding any acquisition by
virtue of the exercise of a conversion privilege), (ii) any acquisition
by the Company; (iii) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company, or any corporation
controlled by the Company, or (iv) any acquisition by any corporation
pursuant to a reorganization, merger or consolidation, if following such
reorganization, merger or consolidation the conditions described in
clause (iii) of paragraph (c) below are met.
(b) Individuals who, as of May 20, 1998 constitute the Board of Directors
of the Company (the "Incumbent Board") cease for any reason to constitute
at least a majority of the Board; provided, however, that any individual
becoming a director subsequent to May 20, 1998 whose election, or
nomination for election by the Company shareholders, was approved by a
vote of at least a majority of the directors then comprising the
Incumbent Board shall be considered as though such individual were a
member of the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of an
actual or threatened election contest with respect to the election or
removal of directors or other actual or threatened solicitation of
proxies or consents by or on behalf of a person other than the Board; or
(c) The stockholders of the Company approve: (i) a plan of complete
liquidation of the Company; or (ii) an agreement for the sale or
disposition of all or substantially all the Company's assets; or (iii) a
merger, consolidation, or reorganization of the Company with or involving
any other corporation, limited liability entity or similar person, other
than a merger, consolidation, or reorganization that would result in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) at least
seventy-five percent (75%) of the combined voting power of the voting
securities of the Company (or such surviving entity) outstanding
immediately after such merger, consolidation, or reorganization."
All provisions of the Agreement not specifically mentioned in this
Amendment shall be considered modified to the extent necessary to be consistent
with the changes made by this Amendment.
IN WITNESS WHEREOF, the Employee has hereunto set his hand and the
Company has caused this Amendment to be executed.
ATTEST: COVANTA ENERGY CORPORATION
/s/ Xxxxxxx X. Xxxxxxxx /s/ Xxxxxxx X. Xxxxxxx
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By: Xxxxxxx X. Xxxxxxx
Its: Vice President, Human Resources
Date:
XXXXX X. XXXX
/s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
Date: 11/26/01
