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EXHIBIT 10.40
FIRST AMENDMENT
TO THE
ALLWASTE EVA(R) INCENTIVE COMPENSATION PLAN
This First Amendment (the "Amendment") to the Allwaste EVA(R) Incentive
Compensation Plan (the "Plan") is executed pursuant to Section 5(B) of the the
Plan. All capitalized and undefined terms used herein shall have the meanings
ascribed to such terms in the Plan.
WHEREAS, Allwaste, Inc. (the "Company") entered into that certain
Agreement and Plan of Merger dated as of March 5, 1997, by and among Xxxxxx
Environmental Inc., an Ontario corporation (now known as Xxxxxx Services Corp.,
"Xxxxxx"), Taro Aggregates Ltd., an Ontario corporation and wholly-owned
subsidiary of Xxxxxx ("Taro"), and Xxxxxx/Atlas Merger Corp., a Delaware
corporation and wholly-owned subsidiary of Taro ("Sub"), pursuant to which Sub
will be merged with and into the Company and the Company will become an
indirect wholly-owned subsidiary of Xxxxxx (the "Merger"); and
WHEREAS, the Compensation Committee (the "Committee") of the Company's
Board of Directors (the "Board") is authorized by Section 5(B) of the Plan to
amend the Plan from time to time; and
WHEREAS, the Committee desires to amend the Plan to provide for
payment of a pro rata portion of any Incentive Declaration with respect to the
Plan Year ended August 31, 1997 to a Plan Participant whose employment is
involuntarily terminated other than for Cause subsequent to the Merger and
prior to payment of Incentive Payments with respect to such Plan Year.
NOW, THEREFORE, as authorized by the Committee, the Plan is hereby
amended as follows:
1. Section 4(B) of the Plan is hereby revised in its entirety to
read as follows:
B. TERMINATIONS
1. CURRENT PLAN YEAR INCENTIVE PAYMENT
Except as set forth below, a Plan Participant whose
employment with Allwaste terminates, for whatever
reason, before receipt of the Incentive Payment for a
Plan Year, will not be eligible to receive the
Incentive Payment for such Plan Year (even if an
Incentive Declaration has been made or determined at
the time of termination). Notwithstanding the
foregoing, any Plan Participant whose employment with
Allwaste is terminated by Allwaste without Cause
prior to the payment of Incentive Payments with
respect to the Plan Year ended August 31, 1997 (the
"1997 Plan Year") and subsequent to the Merger shall
be entitled to receive, at the time of termination, a
pro rata portion of the Incentive Declaration, if
any, that would have been added to such Plan
Participant's Incentive Bank with respect to the 1997
Plan Year. This pro rata portion shall be calculated
by multiplying such Plan Participant's
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Incentive Declaration for the 1997 Plan Year by a
fraction: (i) the numerator of which is the number of
months of the 1997 Plan Year in which such Plan
Participant was employed by Allwaste; and (ii) the
denominator of which is twelve.
2. INCENTIVE BANK BALANCES
a) If a Plan Participant's employment
with Allwaste was terminated as a
result of his death or disability or
by Allwaste without Cause, any
positive Incentive Bank Balance, as
of the end of the previous Plan
Year, attributable to such
terminated Plan Participant will be
paid in full at the time of
termination. Notwithstanding the
foregoing, if a Plan Participant's
employment with Allwaste is
terminated by Allwaste without Cause
prior to payment of Incentive
Payments for the 1997 Plan Year,
such terminated Plan Participant
shall be entitled to receive any
positive Incentive Bank Balance,
including the one- third portion of
any Incentive Declaration
attributable to the 1997 Plan Year
that would have been added to such
Plan Participant's Incentive Bank,
in full at the time of termination.
b) If a Plan Participant voluntarily
terminates his employment with
Allwaste, such Plan Participant
shall thereby forfeit all positive
Incentive Bank balances that have
not vested (in accordance with the
following paragraph) at the time of
termination.
c) Once a Plan Participant reaches the
age of 55 and has been employed by
Allwaste for ten years, he will be
vested in 50% of his positive
Incentive Bank balance for purposes
of distributions in connection with
his retirement, and shall vest in
the remaining 50% of any positive
Incentive Bank balance at the rate
of 10% per year until reaching the
age of 60, at which time he shall be
fully-vested in any positive
Incentive Bank balance. The Plan
Participant must in all cases have
completed the ten-year service
requirement before being entitled to
receive any retirement distribution
of any positive Incentive Bank
balances. Vested Incentive Bank
balances may increase or decrease as
a result of subsequent-year
Incentive Declarations, and are
subject to forfeiture pursuant to
the following paragraph.
d) If a Plan Participant is terminated
by Allwaste for Cause, such Plan
Participant shall thereby forfeit
all positive Incentive Bank
balances, whether or not vested.
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e) On a Change in Control (as defined
in Appendix A), all positive
Incentive Bank balances will be paid
to Plan Participants.
2. Except as amended hereby, the terms and provisions of the Plan
shall remain in full force and effect, and the Plan and this Amendment shall be
read, taken and construed as one and the same instrument.
IN WITNESS WHEREOF, and as conclusive evidence of the adoption of the
foregoing First Amendment to the Plan by the Compensation Committee of the
Board of Directors of the Company, the Company has caused this Amendment to be
duly executed in its name and behalf by its proper officers thereunto duly
authorized as of the 14th day of July, 1997.
ALLWASTE, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
ATTEST:
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President, General Counsel, Secretary
and Corporate Compliance Officer
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