AMENDMENT TO [___________________] EMPLOYMENT AGREEMENT
Exhibit 10.23
AMENDMENT
TO
[___________________]
EMPLOYMENT AGREEMENT
This
AMENDMENT TO EMPLOYMENT AGREEMENT
(this “Amendment”), is made
and entered into effective as of [_________________], 2008 (the “Effective Date”), by
and between Waste Connections, Inc., a Delaware corporation (the “Company”), and
[_________________] (the “Employee”).
WHEREAS, the Company and the
Employee desire to amend that certain [__________________] Employment Agreement
by and between the Company and the Employee, dated as of [_________________]
(the “Agreement”), in order
to ensure that the benefits to be provided by the Agreement comply with, or are
exempt from, the provisions of Xxxxxxx 000X xx xxx Xxxxxx Xxxxxx Internal
Revenue Code (the “Code”).
NOW, THEREFORE, in
consideration of the premises and the mutual covenants and conditions herein,
the Company and the Employee hereby agree as follows effective as of the
Effective Date. Except as otherwise defined herein, capitalized terms
shall have the meanings assigned to them in the Agreement.
1. Amendment. The
Agreement shall be deemed amended to the extent necessary to provide the
following:
(a) Separation from
Service. No benefits payable upon Employee’s termination of
employment that are deemed deferred compensation subject to Section 409A of the
Code, shall be payable upon Employee’s termination of employment pursuant to the
Agreement unless such termination of employment constitutes a “separation from
service” with the Company within the meaning of Section 409A of the Code and the
Department of Treasury regulations and other guidance promulgated thereunder
(a “Separation
from Service”).
(b) Change in
Control. No benefits deemed deferred compensation subject to
Section 409A of the Code shall be payable upon a Change in Control pursuant to
the Agreement unless such Change in Control constitutes a “change in control
event” with respect to the Company within the meaning of Section 409A of the
Code and the Department of Treasury regulations and other guidance promulgated
thereunder.
(c) Waiver. Employee
shall not waive any provision of the Agreement if the effect of such waiver
would be to delay the payment of an amount that is, or as a result of such
waiver becomes, subject to Section 409A of the Code, and any attempt to waive
such provision shall be deemed void ab initio.
(d) Specified
Employee. If Employee is deemed by the Company at the time of
Employee’s Separation from Service to be a “specified employee” for purposes of
Section 409A(a)(2)(B)(i) of the Code, to the extent delayed commencement of any
portion of the benefits to which Employee is entitled under the Agreement is
required in order to avoid a prohibited distribution under Section
409A(a)(2)(B)(i) of the Code, such portion of Employee’s benefits shall not be
provided to Employee prior to the earlier of (i) the expiration of the six-month
period measured from the date of the Employee’s Separation from Service or (ii)
the date of Employee’s death. Upon the first business day following
the expiration of the applicable Code Section 409A(a)(2)(B)(i) period, all
payments deferred pursuant to this Section shall be paid in a lump sum to
Employee, and any remaining payments due under the Agreement shall be paid as
otherwise provided herein.
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(e) Expense
Reimbursements. To the extent that any reimbursements payable
pursuant to the Agreement, including any Gross Up Payments, are subject to the
provisions of Section 409A of the Code, any such reimbursements payable to
Employee pursuant to the Agreement shall be paid to Employee no later than
December 31 of the year following the year in which the expense was incurred,
the amount of expenses reimbursed in one year shall not affect the amount
eligible for reimbursement in any subsequent year, and Employee’s right to
reimbursement under the Agreement will not be subject to liquidation or exchange
for another benefit. Any determination with respect to the amount of
any tax reimbursement, whether any tax reimbursement is due and the assumptions
to be used in such determinations shall be made by the nationally recognized
certified public accounting firm used by the Company immediately prior to a
Change in Control or, if such firm declines to serve, such nationally recognized
certified public accounting firm as may be designated by Employee.
(f) Installments. For
purposes of Section 409A of the Code (including, without limitation, for
purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), Employee’s right
to receive any installment payments under the Agreement shall be treated as a
right to receive a series of separate payments and, accordingly, each such
installment payment shall at all times be considered a separate and distinct
payment.
(g) Extensions. To
the extent the exercisability or term of any option, warrant or other right
relating to the capital stock of the Company is extended pursuant to the terms
of the Agreement, the exercisability or term of such option, warrant or other
right shall in no event extend to a date later than the date such option,
warrant or other right would have expired under any circumstances pursuant to
its original terms.
(h) Bonus. Any
Bonus payable pursuant to the Agreement shall be paid no later than the
fifteenth (15th) day of
the third (3rd) month
following the end of the fiscal year to which such Bonus relates.
(i) Date of
Termination. For the purposes of the Agreement, “Date of Termination”
shall mean, for Disability, thirty (30) days after Notice of Termination is
given to the Employee (provided the Employee
has not returned to duty on a full-time basis during such 30-day period), if the
Employee terminates employment for Good Reason, thirty (30) days after Notice of
Termination is given to the Company, or, if the Employee’s employment is
terminated by the Company for any reason other than Disability or by the
Employee for any reason other than Good Reason, the date specified in the Notice
of Termination which shall be within thirty (30) days of the date such Notice of
Termination is given.
(j) Good
Reason. No action by the Company shall constitute “Good
Reason” unless (i) such action provides a material negative change to Employee’s
employment relationship with the Company, within the meaning of Section 409A of
the Code and the Department of Treasury regulations and other guidance
promulgated thereunder, (ii) Employee’s Notice of Termination is provided to the
Company within thirty (30) days of the initial occurrence of the action giving
rise to Good Reason and (iii) the Company fails to remedy the basis for Good
Reason prior to thirty (30) days following the date of the Notice of
Termination.
2. Counterparts. This
Amendment may be executed in one or more facsimile or original counterparts,
each of which shall be deemed an original and both of which together shall
constitute one and the same instrument.
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3. Ratification. All
terms and provisions of the Agreement not amended hereby, either expressly or by
necessary implication, shall remain in full force and effect. From
and after the date of this Amendment, all references to the term “Agreement” in this
Amendment and in the original Agreement shall include the terms contained in
this Amendment.
4. Conflicting
Provisions. In the event of any conflict between the original
terms of the Agreement and this Amendment, the terms of this Amendment shall
prevail.
5. Authorization. Each
party executing this Amendment represents and warrants that it is duly
authorized to cause this Amendment to be executed and delivered.
IN WITNESS WHEREOF, this
Amendment to Employment Agreement has been duly executed by or on behalf of the
parties hereto as of the date first above written.
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WASTE
CONNECTIONS, INC.
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By:
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