Exhibit 99(e)(4)
FIRST AMENDMENT TO AGREEMENT BETWEEN
AMERICAN NATIONAL CAN COMPANY AND XXXXX XXXXXX
THIS FIRST AMENDMENT TO AGREEMENT BETWEEN AMERICAN NATIONAL CAN COMPANY AND
XXXXX XXXXXX 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 Xxxxx
Xxxxxx (the "Executive").
RECITALS:
A. The American National Can Company and the Executive are parties to
an Agreement, dated as of January 15th, 1996 (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 4(b). Section 4(b)(i) is hereby amended by adding
"(A)" after the subsection heading "(i)" and before the word "During" and
by adding the following subsection (B) after the newly renumbered
subsection 4(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 4(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 4(b)(i)(A) hereof 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 4(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 affect 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 4 of this Agreement. For
purposes of Section 3 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 4(b). Section 4(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 4 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 4, 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 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.
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3. AMENDMENT TO SECTION 4: Section 4 of the Agreement is hereby further
amended by adding the following subsection (h) at the end thereof:
(h) 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 4(h), 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 4(h) 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 4(h), 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 4(h) 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 4(h), 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
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of the parties hereto and of Rexam.
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.
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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/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
Solely as guarantor of the Company's
obligations and as beneficiary of the
amendment provision in Section 4 hereof.
REXAM PLC
By: /s/ Xxxx Xxxxxxxxx
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