Exhibit 99(e)(10)
FIRST AMENDMENT TO AGREEMENT BETWEEN AMERICAN NATIONAL
CAN GROUP, INC., AMERICAN NATIONAL CAN COMPANY, AND
XXXXXXX X. XXXXXXXX
THIS FIRST AMENDMENT TO AGREEMENT BETWEEN AMERICAN NATIONAL CAN GROUP,
INC., AMERICAN NATIONAL CAN COMPANY, AND XXXXXXX X. XXXXXXXX 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 Xxxxxxx X. Xxxxxxxx (the
"Executive").
RECITALS:
A. The Company and the Executive are parties to an Agreement, dated
as of February 18, 2000 (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) MIP" and before the words "The
Company" 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 lieu of the
amounts set forth in Section 3(b)(i)(A) hereof, a MIP award in a
lump-sum cash payment 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 Termination
Date, and the denominator of which shall be 365 (the "MIP Award"). 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 MIP Award
shall be payable upon the Termination Date. For purposes of Section
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 MIP Award shall be
treated as includible compensation in the year in which the Termination
Date occurs for purposes of such calculations.
2. AMENDMENT TO SECTION 3(B). Section 3(b) is hereby further amended by
adding the following subsection (iv) after subsection (iii) thereof:
(iv) 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 Section 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 Retention Pool Payment shall not be
treated as includible compensation for purposes of such calculations.
3. AMENDMENT TO SECTION 3: Section 3 of the Agreement is hereby further
amended by adding the following subsection (k) at the end thereof:
2
(k) TAX GROSS-UP. If any payment or benefit to or for the benefit of
the Executive in connection with a "Change of Control" (as defined in
the Terms and Conditions of the 1999 Grant Agreement under the
Company's Long-Term Stock Incentive Plan) (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(k), 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(k) 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 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(k), 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(k) 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(k), the amount of any such
shortfall shall be paid to the Executive within ten (10) days
after the existence of the shortfall is discovered.
4. AMENDMENT: The provisions amended, modified or added pursuant to this
Amendment may not be amended or modified without the express written
consent of the parties hereto and of Rexam.
3
5. 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.
4
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
this 31st day of March, 2000.
AMERICAN NATIONAL CAN COMPANY
By: /s/ Xxxxxx Xxxxxxx
------------------------------------------
Xxxxxx Xxxxxxx
Chairman and Chief Executive Officer
AMERICAN NATIONAL CAN GROUP, INC.
By: /s/ Xxxxxx Xxxxxxx
------------------------------------------
Xxxxxx Xxxxxxx
Chairman and Chief Executive Officer
EXECUTIVE
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------
Xxxxxxx X. Xxxxxxxx
Solely as guarantor of the Company's obligations and as beneficiary of the
amendment provisions in Section 4 hereof.
REXAM PLC
By: /s/ Xxxx Xxxxxxxxx
--------------------------------
