FORM OF AMENDMENT NO. 1 TO AGREEMENTS
THIS AMENDMENT NO. 1 TO THE AGREEMENTS, dated as of November
4, 1999, is between Giant Cement Holding, Inc., a Delaware corporation (the
"Company"), and (the "Executive").
WHEREAS, the parties have entered into an employment
agreement, dated as of (the "Employment Agreement") and a
change in control agreement, dated as of (the "Change in
Control Agreement")(collectively, the "Agreements"); and
WHEREAS, the Company desires to enter into an Agreement and
Plan of Merger with Cementos Portland, S.A. ("CP") and CP Acquisition, Inc., a
subsidiary of CP (the "Buyer") (the "Merger Agreement"); and
WHEREAS, the Merger Agreement provides, among other things,
that, subject to the satisfaction or waiver of certain conditions, Buyer will be
merged with the Company (the "Merger"); and
WHEREAS, Executive and the Company desire to clarify that
consummation of the Merger will not, by itself, constitute "Good Reason" under
the Agreements; and
WHEREAS, the Company and the Executive desire to amend the
terms of the Agreements pursuant to the terms hereof;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the Company and the Executive hereby agree as
follows:
1. Amendment.
(a) Section 3(i) of the Change in Control Agreement is hereby amended
effective as of the date of the execution of the Merger Agreement by
adding the following sentence to the end thereof:
"Notwithstanding anything to the contrary in this Agreement,
in the event of the consummation of the Merger, for purposes
of this Agreement, (x) any change in the Executive's status as
a of a publicly traded
corporation to a of a
privately-held subsidiary of CP shall not, by itself, be
considered an event under Section 3(i)(A) constituting "Good
Reason", or (y) the failure to provide the Executive with
participation in any stock option or other equity based
compensation plans, shall not constitute "Good Reason". The
Executive and the Company agree that as soon as practicable
following the Merger, the Company will institute a cash
incentive bonus arrangement based on defined performance
standards to be mutually agreed upon by the Executive and the
Company for the benefit of the
Executive which shall be comparable in value and consistent
with the past practice of the Compensation Committee in
granting stock options for the benefit of the Executive
prior to the Merger."
(b) Section 7.04(b) of the Employment Agreement is hereby amended
effective as of the date of the execution of the Merger Agreement by adding the
following sentence to the end thereof:
"Notwithstanding anything to the contrary in this Agreement,
in the event of the consummation of the Merger, for purposes
of this Agreement, (i) any change in the Executive's status as
a of a publicly traded
corporation to a of a
privately-held subsidiary of CP shall not, by itself, be
considered a circumstance under Section 7.04(b)(i)
constituting "Good Reason", or (ii) the failure to provide the
Executive with participation in any stock option or other
equity based compensation plans, shall not constitute "Good
Reason". The Executive and the Company agree that as soon as
practicable following the Merger, the Company will institute a
cash incentive bonus arrangement based on defined performance
standards to be mutually agreed upon by the Executive and the
Company for the benefit of the Executive which shall be
comparable in value and consistent with the past practice of
the Compensation Committee in granting stock options for the
benefit of the Executive prior to the Merger."
2. Arbitration. Any disputes in connection with this
Amendment No. 1 shall be governed by Section 17 of the Change in Control
Agreement.
3. Confirmation. Except as amended by this Amendment No. 1,
the Agreements shall remain in full force and effect.
4. Instruments to be Read Together. This Amendment No. 1 shall
form a part of the Agreements for all purposes and the Agreements and this
Amendment No. 1 shall henceforth be read together.
5. Counterparts. This Amendment No. 1 may be executed in one
or more counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument.
[SIGNATURES BEGIN ON NEXT PAGE]
2
SIGNATURE PAGE TO
AMENDMENT NO. 1 TO AGREEMENTS
IN WITNESS WHEREOF, the parties have executed this Amendment
No. 1 to the Agreements on the date and year first above written.
GIANT CEMENT HOLDING, INC.
By:_________________________
EXECUTIVE
___________________________
3
