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EXHIBIT 10.22
AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
AGREEMENT, dated as of May 28, 1999 ("Effective Date"), by and between
AMERICAN NATIONAL CAN COMPANY, a Delaware corporation, AMERICAN NATIONAL CAN
GROUP, INC., a Delaware corporation (collectively, subject to Section 11(a), the
"Company"), and the individual named on the signature page hereof (the
"Executive").
WHEREAS, the Executive is employed by American National Can Company
("ANCC"), and the Executive and ANCC desire to enter into this Agreement, in
connection with the anticipated reorganization of ANCC, which will result in its
operations being continued by American National Can Group, Inc. ("ANCG"),
pertaining to the terms of the employment of the Executive by the Company; and
WHEREAS, the Executive and ANCC desire that this Agreement shall
constitute an Amendment and Restatement of the existing Agreement between them
with respect to Executive's employment with ANCC, and the Executive and the
Company desire that this Amendment and Restatement shall remain effective
irrespective of whether the aforementioned reorganization occurs;
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the parties hereto hereby agree as follows:
1. DEFINED TERMS. For purposes of this Agreement, the following
terms shall have the following meanings:
(a) "AFFILIATE" means, with respect to any person (including
without limitation the Company), any corporation or other
entity that, directly or indirectly, controls or is controlled
by such person, or that is under common control with such
person.
(b) "BOARD" means the Board of Directors of the Company.
(c) "CAUSE" means (A) serious misconduct or gross negligence in
the performance of the Executive's employment duties; (B)
willful disobedience by the Executive of lawful directions
received from or policies established by the Chairman and
Chief Executive Officer of the Company, any other executive or
executives to whom the Executive reports or the Board, which
continues for more than thirty (30) days after the Company
notifies the Executive of its intention to terminate his
employment on account of such disobedience; or (C) commission
by the Executive of a crime involving fraud or moral turpitude
that can reasonably be expected to have an adverse effect on
the business, reputation or financial situation of the
Company. The Executive shall be permitted to respond and
defend himself before the Executive Committee of the Board
within 15 days
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after written notification of any proposed termination for
Cause which shall specify in detail the reasons for such
termination.
(d) "CHANGE OF CONTROL" means a change in control of ANCC or ANCG
a nature that would be required to be reported in response to
Item 6(e) of Schedule 14A of Regulation 14A promulgated under
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), whether or not it is then subject to such reporting
requirement; provided that, without limitation, a Change of
Control shall be deemed to have occurred if (A) any
individual, partnership, firm, corporation, association,
trust, unincorporated organization or other entity, or any
syndicate or group deemed to be a person under Section
14(d)(2) of the Exchange Act, is or becomes the "beneficial
owner" (as defined in Rule 13d-3 or the General Rules and
Regulations under the Exchange Act), directly or indirectly,
of securities of ANCC or ANCG representing 25% or more of the
combined voting power of its then outstanding securities
entitled to vote in the election of directors; (B) the
stockholders of ANCC or ANCG approve a merger, consolidation
or other transaction involving ANCC or ANCG as a result of
which the stockholders of ANCC or ANCG immediately before the
transaction will not own at least 50% of the surviving or
resulting entity; or (c) during any period of two consecutive
years (not including any period prior to the execution of this
Agreement), individuals who at the beginning of such period
constituted the Board and any new directors, whose election by
the Board or nomination for election by the Company's
stockholders was approved by a vote of at least three quarters
(3/4) of the directors then still in office who either were
directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for
any reason to constitute at least two-thirds thereof.
(e) "CODE" means the Internal Revenue Code of 1986, as amended.
(f) "COMPANY EQUITY PLAN" means any stock option, restricted
stock, stock appreciation right, phantom stock, equity
incentive or similar plan under which awards are denominated
in, or the value of which is determined by reference to,
equity securities of the Company.
(g) "CONFIDENTIAL INFORMATION" includes, without limitation, the
client lists of Pechiney and its Subsidiaries and Affiliates
(including the Company), their respective trade secrets, any
confidential information about (or provided by) any customer
or supplier, or prospective or former customer or supplier, of
Pechiney or any of its Subsidiaries or Affiliates (including
the Company), information concerning the business or financial
affairs of Pechiney or any of its Subsidiaries or Affiliates
(including the Company), including books and records,
commitments, procedures, plans and prospectuses, strategies,
or
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current or prospective transactions or businesses, and any
other "inside information": (i) which has not been disclosed
publicly by Pechiney or one of its Subsidiaries or Affiliates
(including the Company), or with its consent, (ii) which is
otherwise not a matter of public knowledge or (iii) which is a
matter of public knowledge and the Executive has reason to
know that such information became a matter of public knowledge
through an unauthorized disclosure.
(h) "CONTINUATION PERIOD" means the period beginning on the
Termination Date and ending on the second anniversary thereof.
(i) "COVENANT PERIOD" means the period beginning on the Effective
Date and ending on the second anniversary of the Termination
Date.
(j) "GOOD REASON" means (A) a material reduction in the
Executive's status, duties or responsibilities as in effect on
the date of this Agreement, or (B) a reduction in the
Executive's annual target compensation opportunity, defined as
the sum of (I) base salary; (II) targeted annual incentive
award; and (III) subject to the next sentence, the targeted
long-term incentive award under any Company Equity Plan,
payable by either the Company or a successor company for a
calendar year, or (C) the Executive is required to relocate
outside of a fifty mile radius of his current office without
his prior written consent following a Change of Control, or
(D) the Company fails to pay Executive any amount otherwise
vested and due under the Agreement, any prior agreement, or
any plan or policy of the Company, which such failure is not
cured within thirty (30) days following written notice of
failure given to the Company, or (E) the Company fails to
obtain an agreement to expressly assume the executive
employment Agreement from any successor company to the
Company, or (F) the Company is in material breach of the
Agreement, which breach is not cured within thirty (30) days
following written notice of breach given to the Company. For
purposes of clause (B): (i) the value of an option grant shall
be determined based on the methodology utilized by the
Company, from time to time, to determine the size of awards to
employees eligible for long-term incentive compensation; (ii)
if, at the time that a long-term incentive award is made, it
is designated by the Company as being made on account of more
than one calendar year, then it shall be prorated, for
purposes of determining the amount of the targeted long-term
incentive award for any such calendar year, over the years on
account of which it is being made; and (iii) the Executive's
targeted long-term incentive award will be considered to have
been materially reduced if his targeted award is reduced at a
rate greater than, or increased at a rate lesser than the rate
that the awards of the other senior executives of the Company
are reduced or increased, respectively.
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(k) "MIP" means the Company's Management Incentive Plan, as the
same may be amended from time to time, or any successor plan.
(1) "PECHINEY GROUP" means Pechiney and its Subsidiaries and
Affiliates (including the Company).
(m) "PENSION PLANS" means, collectively, the Company's Pension
Plan for Salaried Employees and certain other non-qualified
pension plans or arrangements that the Company maintains for
its senior executives.
(n) "SUBSIDIARY" of a person (including without limitation the
Company) means a corporation with respect to which such
person, directly or indirectly, has the power, whether through
the ownership of voting securities, by contract or otherwise,
to elect at least a majority of the members of such
corporation's board of directors.
(o) "TERMINATION DATE" means the effective date of the Executive's
termination of employment with the Company.
2. GENERAL TERMS OF EMPLOYMENT.
(a) NATURE AND TERM OF THIS AGREEMENT. The term of this Agreement
shall commence on the Effective Date. This Agreement does not
constitute a guarantee of continued employment but instead
provides for certain rights and benefits for the Executive
during his employment, and in the event his employment with
the Company terminates under the circumstances described
herein.
(b) DUTIES AND RESPONSIBILITIES. For so long as the Executive's
employment with the Company continues, the Executive will
devote his full business time, attention and best efforts to
the affairs of the Company, will faithfully serve the Company,
and in all respects conform to and comply with the lawful
directions and instructions consistent with his position as
Senior Vice President -- Beverage Cans Europe and Asia of
ANCC, and Executive Vice President -- ANCG and President --
Beverage Cans Europe and Asia of ANCG given to him by the
Company's Chairman and Chief Executive Officer, any other
executive or executives to whom he reports, or the Board.
(c) AUTHORITY. In performing his duties hereunder, the Executive
shall have the authority customarily held by others holding
similar senior executive level positions within the Company,
as defined in the authority guidelines established by the
Board of Directors or the Chairman and Chief Executive Officer
of the Company.
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(d) OUTSIDE BOARD MEMBERSHIPS. Executive may serve on the boards
of directors of up to two (2) for-profit business corporations
which do not compete with the business of the Company, such
memberships subject to prior approval by the Chairman and
Chief Executive Officer of the Company.
(e) BASE SALARY. The Executive shall receive a salary of
$25,916.67 per month, $311,000 on an annual basis. The
Executive's base salary shall be reviewed periodically by the
Company at the times and in a manner consistent with the
review of base salaries of the Company's other senior
executives, and, based on such review, the amount of the
Executive's base salary may be adjusted upwards but not
downwards, in the discretion of the Company, taking into
account the Executive's performance and any other factors the
Company deems relevant; provided that, while the Executive is
employed hereunder, his salary shall be increased for each
calendar year by a rate that equals or exceeds the average
rate of increase of the base salaries of employees of the
Company generally.
(f) ANNUAL INCENTIVE PLAN. During the period of the Executive's
employment with the Company he will be eligible to participate
in the Company's annual incentive plan, the MIP, at a target
and maximum opportunity as established by the Compensation
Committee of the Board. The MIP may be adjusted or modified
from time to time by the Company in its discretion.
(g) COMPANY EQUITY PLAN. During the period of the Executive's
employment with the Company he will be eligible to participate
in the Company Equity Plan, at a target opportunity similar in
amount to other senior executives at his level. The Company
Equity Plan may be adjusted or modified from time to time by
the Company in its discretion.
(h) COMPANY CAR. The Executive will be eligible for a company car
in accordance with the provisions of the Company's Lease Car
Program.
(i) EMPLOYEE BENEFITS. The Executive shall be eligible to
participate in employee benefit plans sponsored or maintained
by the Company, including, without limitation, life insurance,
medical insurance, hospitalization, dental insurance, short
and long term disability insurance, pension, retirement,
401(k) and deferred compensation plans, whether now existing
or established hereafter. Nothing in this Section 2(i) shall
limit the Company's right to amend or terminate any such plan
in accordance with the procedures set forth therein.
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(j) AGE 60 POST-TERMINATION BENEFITS.
(i) Subject to Section 3(h), if the Executive retires or
otherwise resigns from employment with the Company,
after the Executive attains age 60, and the Executive
does not have thirty (30) years of service credit
towards the total pension benefit calculation under
the Pension Plans, then the Company will pay to the
Executive pursuant to this Agreement a supplemental
monthly pension benefit equal to the excess, if any,
of "A" over "B", where:
"A" equals the aggregate monthly benefit the
Executive would have received under the
Pension Plans upon retirement assuming that
the Executive had thirty (30) years of
service credit towards the total pension
benefit calculation under the Pension Plans
based upon the highest consecutive sixty
(60) months of compensation (as defined for
purposes of the Pension Plans) the Executive
received from the Company during his
employment (including, for purposes of the
calculation, but subject to Section 3(a) and
(b)(i) if the Executive makes the lump sum
election described therein, any amount of
compensation continued during any
Continuation Period under Section 3); and
"B" equals the aggregate monthly amount
payable to the Executive under the Pension
Plans, such amount to be calculated in
accordance with the provisions of the
Pension Plans.
Amounts payable to a survivor of the Executive under
the Pension Plans shall be calculated similarly. The
Company shall determine in its discretion whether,
and to the extent that, any supplemental monthly
pension benefit required under this subsection shall
be paid through a Pension Plan that is intended to be
qualified under Section 401(a) of the Code, or any
successor provision thereto, or under a Pension Plan
or other arrangement that is not intended to be so
qualified. The amount, if any, payable under this
subsection will be determined based on the same form
of payment (e.g. single life annuity or joint and
survivor annuity) that the Executive elects under the
Pension Plans. Payment of such amount will begin at
the time the Executive (or such survivor) starts to
receive monthly benefits under the Pension Plans. If
supplemental pension payment begins before the
Executive's 62nd birthday, the benefit calculation
set forth in "A" above shall not be reduced for early
commencement, notwithstanding any reduction provided
under the Pension Plans.
(ii) Subject to Section 3(h), if the Executive retires or
otherwise resigns from employment with the Company,
after the Executive attains age 60, the Executive and
his family will remain eligible for retiree medical
and life insurance benefits under the applicable
plans of the Company, on the same terms and
conditions (including without limitation any
provisions
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concerning payment of premiums, deductibles and
co-payments) that apply to retirees of the Company on
the Effective Date; provided, however, that such
coverage shall be secondary to any benefits the
Executive or his family becomes eligible to receive
under a comparable program of a subsequent employer.
(iii) Nothing in this Agreement shall be construed to
reduce or impair in any way the Executive's rights
and benefits under any plans of the Company,
including any rights and benefits that he may accrue
under such plans after the date hereof and prior to
his termination of employment with the Company.
(k) VACATION AND PERQUISITES.
(i) The Executive shall be entitled to a minimum of four
weeks paid vacation annually and shall also be
entitled to receive such perquisites as are generally
provided to other senior executives of the Company in
accordance with the then current policies and
practices of the Company.
(ii) The Company shall reimburse the Executive for all
business expenses incurred in the normal course of
business.
(iii) The Company shall reimburse the Executive for all
legal fees attendant to the review of this Agreement,
and shall advance and reimburse the Executive for all
legal fees attendant to the enforcement of his rights
hereunder; provided that, to the extent that the
Company is successful in its defense of a claim by
the Executive to enforce rights hereunder, the
Executive shall not be entitled to reimbursement and
shall repay any amount advanced to him, for the
Executive's legal fees attributable to the portion of
the claim with respect to which the Company is
successful.
3. SEVERANCE BENEFITS UPON TERMINATION. If the Executive's employment
with the Company: (i) is terminated by the Company for any reason other than for
Cause; or (ii) is terminated by the Executive's resignation under circumstances
constituting Good Reason, then, during the Continuation Period (except for the
benefits described in subsection (c), which shall be provided as described in
such subsection), the Executive shall be eligible to receive the severance
benefits described in this Section 3.
(a) BASE SALARY CONTINUATION. The Company will pay the Executive
his base salary equivalent, at the rate in effect immediately
prior to the Termination Date (or if the Executive has
resigned for Good Reason by virtue of the Company having
reduced his rate of base salary, at the rate of base salary in
effect prior to such reduction) consistent with normal payroll
practice The payments following the Termination Date shall be
in lieu of any and all severance pay to which the Executive
might
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otherwise be entitled under any plan or program of the Company
or any of its Subsidiaries or Affiliates. The Executive may
elect that, following a Change of Control, the Executive shall
receive such payments (or any remaining payments) in a
discounted lump sum (calculated using the Federal short-term
rate under Section 1274(d) of the Code prevailing at the time
that payment is to be made (as described in the next
sentence)). Such election may be made within the first 30 days
of this Agreement or within the last 30 days of any calendar
year during the term of this Agreement and any payment
pursuant to such election shall be made on the later of (i)
the first day of the calendar year that is at least twelve
months after such election; (ii) the date that the Executive
becomes entitled to such payment; and (iii) the date of the
Change of Control. The Executive's election of a lump sum
hereunder shall not affect his rights to receive the other
amounts described in this Section 3 for the entire
Continuation Period. If the Executive receives such lump sum
payment, then for purposes of the pension calculations under
Section 2(j) and 3(h), 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 payments shall nonetheless be deemed to have been received
at the time they otherwise would have been payable hereunder
if the Executive had not elected the lump sum.
(b) INCENTIVE COMPENSATION.
(i) The Executive will be eligible for an equivalent MIP
award reflecting business and personal performance at
target level; such award will be paid to the
Executive in accordance with the Company's normal
payment practices for the MIP at the time payments
under the MIP are made to other executives of the
Company. The Executive's equivalent MIP award for any
partial calendar year at the end of the Continuation
Period will be prorated based on a fraction, the
numerator of which is the number of days in such
calendar year up to and including the last day of the
Continuation Period, and the denominator of which is
365. If the Executive has elected a discounted lump
sum payment as described in subsection (a), then the
payments provided in this subsection (b)(i) shall
also be paid in a discounted lump sum, which shall be
calculated and paid as (and have the impact on
employee benefits) described in subsection (a).
(ii) The Executive will be fully vested in any awards that
were made to him under any Company Equity Plan prior
to the Termination Date to the extent that the
vesting of such awards was conditioned upon continued
service; provided that, the term of such awards shall
be determined in accordance with the provisions of
the applicable Company Equity Plan.
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Except for the payments and other benefits provided in this
subsection (b), the Executive shall have no right to any other
payment or benefit under the MIP, the Company Equity Plan or
any other annual or long-term incentive plan of the Company.
Without limiting the generality of the preceding sentence,
this Agreement shall not confer any right on the Executive
following the Termination Date to be granted any further
awards under any Company Equity Plan or any subsequent
long-term incentive plan.
(c) HEALTH AND WELFARE BENEFIT. The Executive will be considered
to have attained the greater of his actual age or age 55 for
purposes of qualifying for retiree benefits provided by the
Company. In lieu of any benefit described under Section
2(j)(ii), until the later of the end of the Continuation
Period or the date the Executive attains age 55 (at which time
the Executive shall be eligible for retiree benefits), the
Executive and his family will remain eligible for medical,
life insurance and dental benefits under the applicable plans
of the Company, on the same terms and conditions (including
without limitation any provisions concerning payment of
premiums, deductibles and co-payments) that apply to employees
of the Company; provided, however, that such coverage shall be
secondary to any benefits the Executive or his family becomes
eligible to receive under a comparable program of a subsequent
employer. For the Continuation Period, the Executive shall be
eligible to participate (or continue to participate) in the
Company's other insurance and welfare programs which are
generally available to senior executives of the Company. If
any of the coverage described in this subsection (c) is
ordinarily provided on a self-insured basis but would be
taxable to the Executive on that basis, such coverage shall be
provided on an insured basis at the Company's expense.
(d) COMPANY CAR. Title to the automobile made available to the
Executive immediately prior to the Termination Date will be
transferred to him at no additional cost as of the Termination
Date; provided, however, that the Executive will be
responsible for all additional costs for the vehicle over and
above the Company's category cost for vehicles at his
executive level, and all income taxes, transfer taxes and
similar governmental charges regarding the transfer and new
registration of the vehicle
(e) OUTPLACEMENT SERVICES. The Executive will be eligible for
senior executive level Outplacement counseling with an
outplacement service selected and paid for by the Company
which outplacement service is reasonably acceptable to the
Executive.
(f) CAPITAL ACCUMULATION PLAN MAKE-UP. Following the Termination
Date, the Executive will be ineligible to participate in the
Company's Capital Accumulation Plan (the "CAP"). The Company
will pay the Executive the amounts it would have contributed
on his behalf to the CAP as matching contributions and/or
discretionary Company profit-sharing contributions during the
Continuation Period, assuming the Executive had elected to
participate in the CAP at the maximum level permitted
thereunder. All such payments will be made on an after-tax
basis. Subject to the last
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sentence of Section 3(a), payment of matching contribution
equivalents will be paid at approximately the same time as the
base salary equivalent payments. Discretionary profit-sharing
contribution equivalents will be made at approximately the
same time as the Company makes such contributions (if any) to
the CAP.
(g) LIFE INSURANCE AND LONG-TERM DISABILITY. The Executive shall
continue to be eligible for life insurance and long-term
disability benefits equals to those applicable to him on the
Termination Date, subject to the same terms and conditions
(including without limitation any provisions concerning
payment of premiums) that generally apply to senior executives
of the Company.
(h) PENSION BENEFITS. In lieu of any benefit otherwise payable
under Section 2(j)(i), the Executive (and his survivor) shall
be entitled to a supplemental benefit with respect to his
benefit under the Pension Plans calculated and payable in the
same manner as the benefit provided under Section 2(j)(i)
hereof, based on the greater of thirty (30) years of service
credit towards the total pension payable under the Pension
Plans and the actual years of such service credit that the
Executive would have earned if he continued to earn such
service credit through the Continuation Period (and including
for purposes of either calculation, in the same manner as in
Section 2(j)(i), but subject to Section 3(a) and (b)(i) if the
Executive makes the lump sum election described therein, any
amount of compensation continued during the Continuation
Period under this Section), irrespective of his age at the
time of his termination of employment. If supplemental pension
payment begins before the Executive's 62nd birthday, the
benefit calculation set forth in paragraph "A" of Section
2(j)(i) will only be reduced for early commencement if payment
begins before the Executive's 60th birthday and will utilize
an early commencement reduction factor of 3% per annum, rather
than 6%, if such benefit calculation is subject to such a
reduction under the Pension Plans.
(i) TAX GROSS-UP. If any payment or benefit to or for the benefit
of the Executive in connection with a Change of Control
(whether pursuant to the terms of this Agreement, or any other
plan or arrangement or agreement) is subject to the Excise Tax
(as hereinafter defined), the Company shall pay to the
Executive a full cash gross-up in an amount equal to (i) the
Excise Tax allocable to such payment or benefit; and (ii) any
Excise Tax and any state, federal or other income taxes on the
amounts described in clause (i) and this clause. For purposes
of this Section 3(i), the term "Excise Tax" shall mean the tax
imposed by Section 4999 of the Internal Revenue Code of 1986
(the "Code") and any similar tax that may hereafter be
imposed.
The amount of the gross-up payments to the Executive under
this Section 3(i) shall be estimated by a nationally
recognized firm of certified public accountants, which firm
shall not have provided services to the Company or any
Affiliate of the
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Company within the previous twelve months and shall not
provide services thereto in the following twelve months, based
upon the following assumptions:
(i) all payments and benefits to or for the benefit of the
Executive in connection with a Change of Control or
termination of the Executive's employment following a
Change of Control shall be deemed to be "parachute
payments" within the meaning of Section 280G(b)(2) of
the Code, and all "excess parachute payments" shall be
deemed to be subject to the Excise Tax except to the
extent that, in the opinion of tax counsel selected by
the firm of certified public accountants charged with
estimating the gross-up payments to the Executive
under this Section 3(i), such payments or benefits are
not subject to the Excise Tax; and
(ii) the Executive shall be deemed to pay federal, state
and other income taxes at the highest marginal rate of
taxation for the applicable calendar year.
The estimated amount of the gross-up payments due the
Executive pursuant to this Section 3(i) shall be paid to the
Executive in a lump sum not later than thirty (30) business
days following the effective date of the termination. In the
event that the amount of the estimated payment is less than
the amount actually due to the Executive under this Section
3(i), the amount of any such shortfall shall be paid to the
Executive within ten (10) days after the existence of the
shortfall is discovered.
(j) NO IMPAIRMENT OF EXISTING RIGHTS. Nothing in this Agreement
shall be construed to reduce or impair in any way the
Executive's rights and benefits under the Pension Plans,
including any rights and benefits that he may accrue under the
Pension Plans after the date hereof and prior to his
termination of employment with the Company.
4. DEATH AND DISABILITY. For the purposes of this Agreement the
Executive will be determined to be totally disabled if he is unable to perform
the major duties of his position with the Company, as a result of illness or
injury, for a period of time exceeding 26 consecutive weeks.
(a) DEATH OR DISABILITY DURING EMPLOYMENT. If the Executive dies
or becomes totally disabled during his employment with the
Company, the Executive or his estate, as the case may be, will
be entitled to receive benefits in accordance with the
policies of the Company.
(b) DEATH OR DISABILITY DURING CONTINUATION PERIOD. If the
Executive dies or becomes totally disabled during the
Continuation Period, the Executive or his estate, as the case
may be, will be entitled to the severance benefits provided
for in this Agreement (other than outplacement services), as
well as to the standard benefits and insurance
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payments under the benefits plans of the Company then in
effect (determined as though his employment with the Company
had terminated by virtue of death or total disability).
5. CERTAIN COVENANTS.
(a) COVENANT NOT TO COMPETE. The Executive agrees that during the
period of his employment with the Company and continuing
through the Covenant Period:
(i) he will not engage in any executive-level activities,
whether as employee, agent proprietor, owner, partner,
contractor, stockholder (other than the holder of less
than 5% of the stock of a corporation the securities
of which are traded on a national securities exchange
or in the over-the-counter market), director or
otherwise, in competition with the businesses
conducted by the Company and its Subsidiaries on the
date hereof or in which they are substantially engaged
at any time during the Covenant Period; and
(ii) he will not solicit, in competition with the Company
or any of its Subsidiaries, any person who is a
customer of the businesses conducted by the Company or
any of its Subsidiaries at the date hereof or any
businesses in which the Company or any of its
Subsidiaries are substantially engaged at any time
during the Covenant Period.
(b) TERRITORIAL REACH. The covenants contained in clauses (i) and
(ii) of subsection (a) of this Section 5 shall apply within
the territories in which the Company or any of its
Subsidiaries are actively engaged in the conduct of the
businesses described in such covenants at the relevant time,
including, without limitation, the territory in which
customers are then solicited.
(c) COVENANT NOT TO INDUCE TERMINATION OF EMPLOYMENT. The
Executive agrees that during the Covenant Period he will not,
without the prior written consent of the Company (which
consent may be withheld by the Company at its sole
discretion), induce or attempt to persuade any employee of the
Company or any of its Subsidiaries to terminate his or her
employment relationship in order to enter into any other
employment, whether or not such other employment is
competitive with the Company or any of its Subsidiaries.
(d) COVENANT NOT TO DISCLOSE CONFIDENTIAL INFORMATION. The
Executive agrees that he will not, at any time during the
Covenant Period or thereafter, make use, for his own benefit
or the benefit of any other person or entity, of Confidential
Information of any kind or character, nor divulge Confidential
Information except to the extent the Chairman and Chief
Executive Officer of the Company(1) or the Board may so
authorize in writing, and that within ten days of the
Termination
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Date the Executive will surrender to the Company all records,
in whatever form maintained (including without limitation
records maintained as computer files) and other documents and
materials obtained by the Executive or entrusted to him during
the course of his employment by the Company or any of its
Subsidiaries or Affiliates (together with all copies thereof)
which related to any such Confidential Information. Nothing
set forth in this subsection (d), however, shall be
interpreted to prohibit the Executive from disclosing any such
information as may be required by law, including pursuant to
any court or government decree or subpoena, or from disclosing
or using information generally known by people of his
expertise and position in the industry.
(e) REMEDIES. Without limiting the right of the Company to pursue
all other legal and equitable remedies available for violation
by the Executive of the covenants contained in this Section,
it is expressly agreed that if the Executive materially
breaches the covenants set forth in this Section and fails to
cure such breach to the reasonable satisfaction of the Company
within 30 days after written notice thereof, the Company will
have no further obligation to pay or provide any of the
severance benefits described in Section 3(a) or (b) above. In
addition, the Executive acknowledges that a breach of any of
the covenants set forth in this Section may result in material
irreparable injury to the Company for which there is no
adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the
event of such a breach or threat thereof, the Company shall be
entitled, in addition to any other rights or remedies it may
have (including without limitation the remedy provided in the
preceding sentence), to obtain a temporary restraining order
and a preliminary or permanent injunction enjoining or
restraining the Executive from engaging in activities
prohibited by this Section or requiring his compliance with
the affirmative obligations provided for herein.
(f) ENFORCEABILITY. It is the intent and understanding of each
party hereto that if in any action before any court or agency
legally empowered to enforce the covenants contained in this
Section any term, restriction, covenant or promise contained
herein is found to be unreasonable and accordingly
unenforceable, then such term, restriction, covenant or
promise shall be deemed modified to the extent necessary to
make it enforceable by such court or agency.
(g) APPLICATION TO PECHINEY. Notwithstanding any provision in this
Agreement to the contrary, the restrictions described in
subsections (a) - (c) of this Section shall only limit the
Executive's activities with respect to Pechiney and its
employees, if Pechiney announces, following appropriate action
of its Board of Directors, that it has abandoned plans to
dispose of the operations of the Company.
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14
6. NO UNFAVORABLE COMMENTS. The Company agrees to refrain from making
now or any time in the future any comment reflecting unfavorably upon the
Executive to the press, any individual or entity with whom the Executive has a
business relationship or any individual or entity making an inquiry as to the
Executive's employment relationship with the Company, except to the extent that
any such comment may relate to circumstances underlying a termination of the
Executive's employment for Cause. The Executive agrees to refrain from making
now or at any time in the future any comment reflecting unfavorably upon any
member of the Pechiney Group (including the Company) or any current or former
directors, officers or employees of any member of the Pechiney Group to the
press, any employees of any member of the Pechiney Group or any individual or
entity with whom any member of the Pechiney Group has a business relationship,
except to the extent that any such comment may relate to circumstances
underlying a termination of the Executive's employment for Good Reason.
7. FULL SATISFACTION; RELEASE. The Executive agrees that the payments
and other benefits to be provided pursuant to this Agreement shall be in full
satisfaction of any and all claims for payment or any other benefits that he may
have against the Company or any of its Subsidiaries or Affiliates arising out of
(i) his employment with the Company or his status as an executive of the Company
or any of the Company's Subsidiaries, Affiliates or divisions, or (ii) the
termination of such employment and status; excluding (A) claims that arise out
of an asserted breach of this Agreement and (B) claims for indemnification the
Executive may now or in the future have under any bylaw, agreement or otherwise.
In addition, in consideration of the agreements set forth herein, the Company,
on the one hand, and the Executive, on the other hand, release and waive all
claims, causes of action or the like arising on or before the date hereof,
regardless of whether or not known at present (including, without limitation,
any claims arising under the Age Discrimination in Employment Act of 1967, Title
VII of the Civil Rights Act of 1964 as amended by the Civil Rights Act of 1991,
the Equal Pay Act of 1962, the Americans with Disabilities Act of 1990, or any
other federal, state or local statute or ordinance; but excluding, in the case
of both the Company and the Executive, any claims that arise out of an asserted
breach of the terms of this Agreement), that either has or may have in the
future against the other and, in the case of the Company, their respective
successors, shareholders, directors, officers, agents and employees, regarding
all matters relating to the Executive's service as an employee of the Company or
any of its Subsidiaries, Affiliates or divisions, and to the termination of such
relationships, including, without limitation, all claims related to the payment
of compensation and benefits and all claims arising under any Federal or state
statute or regulation. The Executive and the Company shall execute as of the
Termination Date any further documents as may reasonably be requested by the
other in order to evidence and give effect to the provisions of this Section.
8. SOURCE OF PAYMENTS. All payments provided under this Agreement,
other than payments made pursuant to a benefit plan which may provide otherwise,
shall be paid in cash from the general funds of the Company, and no special or
separate fund shall be established, and no other segregation of assets made, to
assure payment. The Executive shall have no right, title or interest whatever in
or to any investments which the Company may make to aid the Company
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15
in meeting its obligations hereunder. Nothing contained in this Agreement, and
no action taken pursuant to its provisions, shall create or be construed to
create, a trust of any kind, or a fiduciary relationship, between the Company
and the Executive or any other person. To the extent that any person acquires a
right to receive payments from the Company hereunder, such right shall be no
greater than the right of an unsecured creditor of the Company.
9. FUTURE COOPERATION. The Executive agrees that following
termination of his employment with the Company he will make himself available to
assist with or consult in transition matters or any then pending or future
governmental or regulatory investigation, civil or administrative proceeding or
arbitration related to the Executive's duties while employed by the Company,
subject to the Executive's other personal and business commitments. The Company
will promptly pay the Executive, at the rate of $1,500 for each day or portion
thereof for which the Executive so assists or consults, and reimburse the
Executive for all reasonable costs and expenses, including attorneys' fees,
incurred by the Executive in connection with any such activities, proceedings or
arbitration.
10. TAX WITHHOLDING. All amounts payable to the Executive pursuant to
this Agreement shall be subject to all legal requirements with respect to the
withholding of taxes including FICA.
11. MISCELLANEOUS.
(a) ENTIRE AGREEMENT; CONDITION; AMENDMENTS. This Agreement sets
forth the entire understanding of the parties hereto with
respect to the subject matter hereof and cannot be amended or
modified except by a writing signed by all such parties. If
Pechiney announces, following appropriate action of its Board
of Directors, that it has abandoned plans to dispose of the
operations of the Company, this Agreement shall continue to be
in force and effect and shall govern the employment
relationship between the Executive and the Company. The waiver
by either party of compliance with any provision of this
Agreement by the other party shall not operate or be construed
as a waiver of any other provision of this Agreement or of any
subsequent breach by such party of a provision of this
Agreement.
(b) ASSIGNMENT AND DELEGATION. Neither this Agreement nor any
right, duty or obligation hereunder shall be assignable or
delegable by the Executive. This Agreement and all the
Company's rights, duties and obligations hereunder may be
assigned by the Company to any person or entity that succeeds
to the interest of the Company (regardless of whether such
succession does or does not occur by operation of law) by
reason of the sale of all or a portion of the Company's stock,
a merger, consolidation or reorganization involving the
Company, or, unless the Company otherwise elects in writing, a
sale of the assets of the business of the Company (or a
portion thereof) in which the Executive performs, or will
perform, a majority of his services. Upon any such assignment,
delegation or transfer, any such business entity shall be
deemed to be substituted for all purposes as the Company
hereunder, and the Company shall cause such successor
expressly to assume such obligations. Notwithstanding the
foregoing, (i) no assignment, delegation or transfer by the
Company shall relieve the Company of its obligations
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16
under this Agreement; and (ii) nothing in this subsection
shall affect the definition of "Change of Control," or the
rights that the Executive accrues in connection with a Change
of Control, even if the Company assigns, transfers or
delegates (or may do so) its rights, duties or obligations in
connection therewith.
(c) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and
the same instrument.
(d) HEADINGS. The headings of the Sections of this Agreement are
included solely for convenience of reference and shall not be
construed or interpreted in any way as affecting the meaning
of such Sections.
(e) GOVERNING LAW. This Agreement is governed by, and construed
and interpreted in accordance with, the internal laws of the
State of Illinois without giving effect to the choice of law
provisions thereof. Any dispute under this Agreement shall be
adjudicated by a court of competent jurisdiction in the State
of Illinois.
(f) INDEMNIFICATION. The Company will indemnify the Executive to
the fullest extent permitted by the laws of the state of
incorporation in effect at that time, or certificate of
incorporation and bylaws of the Company whichever affords the
greater protection to the Executive. The foregoing
indemnification shall continue to apply following the
Termination Date for acts or omissions by the Executive while
an employee of the Company. To the extent that the Company
maintains insurance providing coverage to its officers or
former officers within the scope of the foregoing, such
insurance shall cover the Executive.
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17
(g) SURVIVORSHIP. The provisions of this Agreement necessary to
carry out the intention of the parties as expressed herein
shall survive the termination or expiration of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
this 28th day of May, 1999.
AMERICAN NATIONAL CAN COMPANY
By: /s/ XXXX-XXXXXX XXXXXX
-------------------------------------
Xxxx-Xxxxxx Xxxxxx
Chairman of the Board
AMERICAN NATIONAL CAN GROUP, INC.
By: /s/ XXXX-XXXXXX XXXXXX
-------------------------------------
Xxxx-Xxxxxx Xxxxxx
Chairman of the Board
EXECUTIVE
/s/ XXXXXXX X. XXXXXXX
----------------------------------------
Xxxxxxx X. Xxxxxxx
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