Contract
AMENDMENT
TO EMPLOYMENT AGREEMENT dated
as
of September 13, 2006, between Xxxxx
Plastics Corporation,
a
Delaware corporation (the “Corporation”), and XXXXX
XXXX XXXXXXX
(the
“Employee”).
WHEREAS,
the Employee has entered into an employment agreement with the Corporation,
dated as of September 15, 2006
(the
“Employment Agreement”);
NOW,
THEREFORE, in consideration of the mutual covenants hereinafter set forth and
for other good and valuable consideration, the parties hereto do hereby agree
to
amend the Employment Agreement, effective as of as of and subject to the
occurrence of the Closing Date (as defined in the Agreement and Plan of Merger
(the “Merger Agreement”), dated as of June 28, 2006, by and between BPC Holding
Corporation, BPC Holding Acquisition Corp. and BPC Acquisition Corp.), as
follows (the “Amendment”):
1.Term.
Section
1 of the Employment Agreement is hereby deleted in its entirety and replaced
with the following text:
“Subject
to earlier termination as provided herein, the employment of the Employee
hereunder shall commence on the September 20, 2006 and terminate on
December 31, 2011. Such period of employment is hereinafter referred to as
the
"Employment Period.”
2. Retiree
Plan.
A new
Section 8(c) is hereby inserted in the Employment Agreement and shall read
as
follows:
“Upon
the
termination of the Employee’s employment by reason of “retirement” (as defined
in the Corporation’s Health and Welfare Plan for Early Retirees (the
“Retiree
Plan”)),
the
Employee (and his or her eligible spouse and dependents) shall be entitled
to
receive post-retirement medical insurance coverage pursuant to the terms of
the
Retiree Plan, for which the cost of premiums shall be paid by the Employee
(or
such spouse and/or dependents). In the event that the Retiree Plan is no longer
in effect (or if otherwise necessary for tax and legal purposes), the
Corporation shall make available equivalent coverage to the Employee (and such
spouse and/or dependents) at substantially the same cost to the Employee (and
such spouse and/or dependents) as would have been charged under the Retiree
Plan
as of the earlier of the date the Retiree Plan is terminated and the time of
the
Employee’s retirement (“Equivalent
Retiree Coverage”);
provided,
however,
that
the Corporation may increase the premium charged to the Employee (and such
spouse and/or dependents) based on the increase in cost, if any, to provide
the
Retiree Plan that may arise after the Employee’s retirement. The Corporation
shall take all action necessary to ensure that the Equivalent Retiree Coverage,
if any, shall be provided other than pursuant to the terms of a self-insured
medical
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reimbursement
plan that does not satisfy the requirements of Section 105(h)(2) of the Internal
Revenue Code of 1986, as amended.”
3. Former
Section 8(c) of the Employment Agreement shall be re-numbered 8(d).
4. Restrictive
Covenants.
Clause
(iii) of Section 10(a) of the Employment Agreement is hereby deleted in its
entirety and replaced with the following text:
“(iii)
induce or solicit individuals who are, or were at any time in the preceding
twelve months, employees of the Corporation or any direct or indirect subsidiary
or affiliate thereof to terminate their employment with the Corporation or
any
such direct or indirect subsidiary or affiliate or to engage in any Competing
Business, or hire, or induce or solicit (or assist others to hire or induce
or
solicit) the hiring of, individuals then employed, or employed at any time
in
the preceding twelve months, by the Corporation or any subsidiary thereof,
or”
5. Counterparts.
This
Amendment may be executed in any number of counterparts, and each such
counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
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IN
WITNESS WHEREOF, the Corporation has caused this Amendment to be duly executed
by its officer thereunder duly authorized and the Employee has hereunto set
his
hand, all as of the day and year first set forth above.
XXXXX
PLASTICS CORPORATION
_____________________________________
Name: Xxxxxx
X.
Xxxxxx
Title: Executive
Vice President of Human Resources
ACCEPTED:
The
undersigned hereby acknowledges having read this Amendment and, having had
the
opportunity to consult with legal and tax advisors, hereby agrees to be bound
by
all provisions set forth herein.
______________________________________
Xxxxx
Xxxx
Xxxxxxx
W/1063915v1
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