Exhibit 99(e)(7)
SECOND AMENDMENT TO AMENDED AND RESTATED EXECUTIVE
EMPLOYMENT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED EXECUTIVE EMPLOYMENT
AGREEMENT is entered into as of this 31st day of March, 2000, by and among
American National Can Company, a Delaware corporation, and American National Can
Group, Inc., a Delaware corporation (collectively the "Company"), and Xxxxxx X.
Xxxxxxxxx (the "Executive").
RECITALS:
A. The Company and the Executive are parties to an Amended and
Restated Executive Employment Agreement, dated as of May 28, 1999 (the
"Agreement").
B. The parties have agreed to update the Agreement to reflect certain
agreements relating to additional payments to be made to the Executive under
the Management Incentive Plan and the retention program in connection with
the proposed transactions among the Company, Rexam PLC, an English limited
company ("Rexam") and Rexam Acquisition Subsidiary Inc. (the "Merger Sub")
(the "Merger"), pursuant to the Agreement and Plan of Merger among Rexam, the
Merger Sub and the Company, dated as of March 31, 2000 (the "Merger
Agreement").
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt of which the parties hereby acknowledge, the
parties agree as follows:
1. AMENDMENT TO SECTION 3(b). Section 3(b)(i) is hereby amended by adding
"(A)" after the subsection heading "(i)" and before the words "The
Executive," by changing the reference to "subsection (b)(i)" in the last
sentence of the newly renumbered subsection 3(b)(i)(A) to "subsection
(b)(i)(A)," and by adding the following subsection (B) after the newly
renumbered subsection 3(b)(i)(A) thereof:
(B) Unless the Performance Conditions set forth below (the "Performance
Conditions") are not satisfied during the period commencing on the date
hereof and ending on the Closing Date (as defined in the Merger Agreement),
the Executive shall be entitled to receive, in addition to the amounts set
forth in Section 3(b)(i)(A) hereof, additional MIP awards in a lump-sum
cash payment equal to the sum of (x) the aggregate amount payable under
Section (3)(b)(i)(A) hereof without the discount referenced in the last
sentence of Section 3(b)(i)(A) and (y) the amount equal to the MIP award
payable at maximum level for the year 2000 pro-rated based on a fraction,
the numerator of which shall be the number of days from January 1, 2000
until the Closing Date, and the denominator of which shall be 365 (the sum
of (x) and (y) referred to herein as the "Additional MIP Awards"). For
purposes of this Section 3(b)(i)(B), the Performance Conditions are: (I)
regular consultation between the Executive and the Chief Executive Officer
of the Company (the "CEO") (or his designee) on any matter which is
likely to have a material and negative effect on the results of operations
of the Company and the taking of any action agreed upon by the Executive
and the CEO (or his designee) pursuant to such consultation with respect to
such matter; and (II) the Executive having provided active, positive
support to the process of Rexam acquiring and integrating the Company into
Rexam's operations and administrative structures as reasonably directed by
the CEO (or his designee), including but not limited to, supporting the
acquisition internally and externally, exercising reasonable efforts under
the circumstances to minimize attrition among key management of the
Company, providing access to information and employees, in accordance with
and subject to the limitations of Section 5.02 of the Merger Agreement, and
using reasonable efforts under the circumstances to preserve relationships
with customers and suppliers, in accordance with and subject to the
limitations of Section 4.01(a) of the Merger Agreement, to the extent the
Executive's duties as of the date hereof include contact with customers and
suppliers. In the event that Rexam reasonably considers that the condition
set forth in (II) above is not being or is unlikely to be met based upon
performance to that time, Rexam will promptly advise the Executive in
writing of such, and shall provide the Executive with a reasonable
opportunity to remedy his performance and meet such Performance Conditions.
Notwithstanding anything contained in this Agreement to the contrary, the
Additional MIP Awards shall be payable upon the earlier to occur of the
thirtieth day following the Closing Date and the date that the Executive is
due to receive his first payment under Section 3 of this Agreement. For
purposes of Sections 2(j) and 3(h) of this Agreement, and for purposes of
all employee benefits provided by the Company (hereunder or otherwise) that
are affected by the compensation or earnings of the Executive, the
Additional MIP Awards shall be treated as includible compensation for
purposes of such calculations and shall be deemed to have been paid over
the Continuation Period as opposed to in a lump sum.
2. AMENDMENT TO SECTION 3(b). Section 3(b) is hereby further amended by adding
the following subsection (iii) after subsection (ii) thereof:
(iii) The Executive shall be entitled to receive the amount set forth
beside the Executive's name on Exhibit A hereto (the "Retention Pool
Payment"). The Retention Pool Payment shall be paid to the Executive in
cash in a lump sum upon the earlier to occur of the thirtieth day following
the Closing Date and the date that the Executive is due to receive his
first payment under Section 3 of this Agreement; PROVIDED, HOWEVER, that,
notwithstanding anything contained herein to the contrary, if the
Executive's employment is not terminated under circumstances entitling him
to receive payments under this Section 3, then the Executive shall receive
the Retention Pool Payment at the time the Retention Pool Payments are
otherwise payable pursuant to Schedule 5.08(d) of the Merger Agreement. For
purposes of Sections 2(j) and 3(h) of this Agreement, and for purposes of
all employee benefits provided by the Company (hereunder or otherwise) that
are affected by the compensation or earnings of the Executive, the
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Retention Pool Payment shall not be treated as includible compensation for
purposes of such calculations.
3. AMENDMENT: The provisions amended, modified or added pursuant to this
Second Amendment may not be amended or modified without the express written
consent of the parties hereto and of Rexam.
4. COUNTERPARTS. This Amendment may be executed in several counterparts, each
of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment this
31st day of March, 2000.
AMERICAN NATIONAL CAN COMPANY
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
Chairman and Chief Executive Officer
AMERICAN NATIONAL CAN GROUP, INC.
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
Chairman and Chief Executive Officer
EXECUTIVE
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
Solely as guarantor of the Company's
obligations and as beneficiary of the
amendment provisions in Section 3
hereof.
REXAM PLC
By: /s/ Xxxx Xxxxxxxxx
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