EXHIBIT 10.13b
AMENDMENT TO
TRANSITION EMPLOYMENT AGREEMENT
THIS AMENDMENT TO TRANSITION EMPLOYMENT AGREEMENT is
made by and between Foodbrands America, Inc. (the "Company") and
the executive named on the signature page hereto (the
"Executive") dated as of the 31st day of December, 1996.
WITNESSETH:
WHEREAS, the Company and the Executive have previously
entered into that certain Transition Employment Agreement dated
as of May 30, 1996 (the "Original Agreement"); and
WHEREAS, the Original Agreement was not intended by
either party to cause the amounts payable to the Executive
pursuant to the Original Agreement to be reduced by aggregating
such amounts with any other payments or benefits payable to the
Executive and the parties desire to amend Paragraph 9 of the
Original Agreement to clarify and effectuate the parties' intent.
NOW, THEREFORE, in consideration of mutual covenants
and representations contained herein, the parties hereto agree as
follows:
1. In the event that the Company becomes a party to a
transaction which is otherwise intended to qualify for "pooling
of interests" accounting treatment the (A) this Amendment shall,
to the extent practicable, be interpreted so as to permit such
accounting treatment, and (B) to the extent that the application
of clause (A) of this sentence does not preserve the availability
of such accounting treatment, then, to the extent that any
provision of this Amendment disqualifies the transaction as a
"pooling" transaction (including, if applicable, this entire
Amendment), such provision shall be null and void as of the date
hereof. All determinations under this paragraph shall be made by
the accounting firm whose opinion with respect to "pooling of
interests" is required as a condition to the consummation of such
transaction.
2. Paragraph 9 of the Original Agreement is hereby
amended to read, in its entirety as follows:
9. (a) Notwithstanding any other provisions of
this Agreement, in the event that any payment or benefit
which is part of the Total Payments (as defined in
Paragraph 9(d) hereof) would be subject (in whole or
part) to the Excise Tax (as defined in Paragraph 9(d)
hereof), then, after taking into account any reduction in
the Total Payments provided by reason of section 280G of
the Code in any applicable plan, arrangement or agreement
other than this Agreement, the cash Agreement Payments
(as defined in Paragraph 9(d) hereof) shall first be
reduced, to the extent necessary so that no portion of
the Total Payments is subject to the Excise Tax but only
if (A) the net amount of such Total Payments, as so
reduced (and after subtracting the net amount of Federal,
state and local income taxes on such reduced Total
Payments) is greater than or equal to (B) the net amount
of such Total Payments without such reduction (but after
subtracting the net amount of Federal, state and local
income taxes on such Total Payments and the amount of
Excise Tax to which the Executive would be subject in
respect of such unreduced Total Payments).
(b) For purposes of determining whether and
the extent to which the Total Payments will be subject to
the Excise Tax, (i) no portion of the Total Payments the
receipt or enjoyment of which the Executive shall have
waived at such time and in such manner as not to consti-
tute a "payment" within the meaning of section 280G(b) of
the Code shall be taken into account, (ii) no portion of
the Total Payments shall be taken into account which, in
the opinion of tax counsel ("Tax Counsel") reasonably
acceptable to the Executive and selected by the account-
ing firm (the "Auditor") which was, immediately prior to
the Change of Control, the Company's independent auditor,
does not constitute a "parachute payment" within the
meaning of section 280G(b)(2) of the Code (including by
reason of section 280G(b)(4)(A) of the Code) and, in
calculating the Excise Tax, no portion of such Total
Payments shall be taken into account which, in the
opinion of Tax Counsel, constitutes reasonable compensa-
tion for services actually rendered, within the meaning
of section 280G(b)(4)(B) of the Code, in excess of the
Base Amount (as defined in Paragraph 9(d) hereof)
allocable to such reasonable compensation, and (iii) the
value of any non-cash benefit or any deferred payment or
benefit included in the Total Payments shall be deter-
mined by the Auditor in accordance with the principles of
sections 280G(d)(3) and (4) of the Code.
(c) At the time that payments are made under
this Agreement, the Company shall provide the Executive
with a written statement setting forth the manner in
which such payments were calculated and the basis for
such calculations including, without limitation, any
opinions or other advice the Company has received from
Tax Counsel, the Auditor or other advisors or consultants
(and any such opinions or advice which are in writing
shall be attached to the statement). If the Executive
objects to the Company's calculations, then, subject to
Paragraph 9(e) hereof, the Company shall pay to the
Executive such portion of the Agreement Payments (up to
one hundred (100%) percent thereof) as the Executive
determines is necessary to result in the proper applica-
tion of Paragraph 9(a) hereof.
(d) As used in this Paragraph 9, the following
terms shall have the meanings set forth below:
(i) "Affiliate" shall have the meaning
set forth in Rule 12b-2 promulgated under Section 12 of
the Exchange Act.
(ii) "Agreement Payments" shall have the
meaning given in Paragraph 9(d)(vii) hereof.
(iii) "Base Amount" shall have the
meaning set forth in section 280G(b)(3) of the Code.
(iv) "Exchange Act" shall mean the
Securities Exchange Act of 1934, as amended from time to
time.
(v) "Excise Tax" shall mean any excise
tax imposed under section 4999 of the Code.
(vi) "Person" shall have the meaning
given in Section 3(a)(9) of the Exchange Act, as modified
and used in Sections 13(d) and 14(d) thereof, except that
such term shall not include (i) the Company or any of its
subsidiaries, (ii) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company
or any of its Affiliates, (iii) an underwriting tempo-
rarily holding securities pursuant to an offering of such
securities, or (iv) a corporation owned, directly or
indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of
stock of the Company.
(vii) "Total Payments" shall mean all
payments and benefits received or to be received by the
Executive (including the payments provided under this
Agreement without regard to this Paragraph 9 (the
"Agreement Payments")) in connection with a Change of
Control or the termination of the Executive's employment
(whether pursuant to the terms of this Agreement or any
other plan, arrangement or agreement with the Company,
any Person whose actions result in a Change of Control or
any Person affiliated with the Company or such Person).
(e) In the event that the amount of the
Agreement Payments made hereunder exceeds the amount
subsequently determined to have been due (taking into
account this Paragraph 9), such excess shall constitute
a loan by the Company to the Executive, payable on the
fifth (5th) business day after demand by the Company
(together with interest at 120% of the rate provided in
section 1274(b)(2)(B) of the Code).
3. Except as amended above, the Original Agreement
shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed
this Amendment to the Original Agreement on the day and year
first above written.
COMPANY:
FOODBRANDS AMERICA, INC.
By:_______________________________
Name: R. Xxxxxxxx Xxxxxxxx
Title: Chairman, Chief Execu-
tive Officer and
President
EXECUTIVE:
__________________________________
Name:
Title:
