1
Exhibit 10.61
AMENDMENT NO. 1
TO EMPLOYMENT AGREEMENT
This Amendment No. 1 (the "Amendment") to the Employment
Agreement (the "Agreement") by and between United States Can Company, a Delaware
corporation (the "Company") and Xxxxx X. Xxxxxx, an employee of the Company (the
"Employee"), is made and entered into as of the 17th day of November, 1997, by
and between the Company and the Employee.
W I T N E S S E T H:
WHEREAS, the Employee has previously entered into the
Agreement under the terms and conditions set forth therein;
WHEREAS, the Company wishes to amend the Agreement to offer
certain supplemental retirement medical benefits for Management Executive
Committee members who have attained the age of 55 years or older and who retire
or whose employment is terminated.
NOW, THEREFORE, in consideration of the foregoing, the mutual
promises, covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
3. Plan Benefits.
a. Eligibility. The Employee shall be eligible to
receive the benefits described in the section
entitled "Modified Benefits for Certain Former
Employees" (the "Plan") under the United States Can
Company Health, Life and Disability Benefits Plan, as
amended (a) if the Employee is a member of the
Company's Management Executive Committee and (b) if
after the attainment of age 55 years or older, the
Employee's employment is terminated, for any reason,
including retirement, other than a termination by the
Company for cause (as specified in the Employee's
employment agreement). A copy of the Plan is attached
as Exhibit A hereto.
b. Effectiveness of Plan. The Employee's coverage
under the Plan shall become effective on the date the
Employee's active employee coverage ends; provided,
however the Employee meets the requirements of
Section 1(a) above and does not violate the covenant
set forth in Section 1(c) hereinafter.
2
c. Conditions.
(i) Non-Compete. As a condition of
participation in the Plan, the Employee
agrees that he will not directly or
indirectly (whether through a partnership of
which the Employee is a partner or through
any other individual or entity in which the
Employee has a any interest, legal or
equitable), (a) engage in any business
competitive with the business of the
Company; or (b) solicit or otherwise engage
with any customers or clients of the Company
in any transactions which are in direct
competition with the Company; in each case
in the United States of America or any
country where the Company or its
subsidiaries or affiliates are doing
business with respect to the Company's
products and services, and in each case,
excluding passive investment interests of
less than two percent (2%) in corporations
whose stock is registered under the
Securities Exchange Act of 1934, as amended.
(ii) Equitable Relief. The Employee
understands that a breach by him of this
Section 1(c) may cause substantial injury to
the Company, which may be irreparable or in
amounts difficult or impossible to
ascertain, or both and that in the event the
Employee breaches this Section 1(c), the
Company shall have, in addition to all other
remedies available in the event of a breach
of this Amendment, the right to injunctive
or other equitable relief. Further, the
Employee acknowledges and agrees that the
restrictions set forth herein are necessary
to protect the Company's legitimate
interests and are reasonable in scope, area
and time, and that if, despite this
acknowledgement and agreement, at the time
of enforcement of this Amendment, a court of
competent jurisdiction shall hold that the
period or scope of such provision is
unreasonable under the circumstances then
existing, the maximum reasonable period or
scope under such circumstances shall be
substituted for the period or scope stated
in such provision.
(iii) Termination of Benefits. Should
the Employee breach this Section 1(c), all
-2-
3
benefits provided under the Plan for the
Employee (and his spouse, if applicable)
shall cease, and the Company shall be
entitled to pursue all other available legal
or equitable remedies.
2. Provisions of the Plan. The following is a list of certain
provisions and benefits of the Plan. The information concerning the
foregoing in this Amendment is qualified in its entirety by the Plan
document, the text of which shall at all times be controlling.
(a) Coverage. If the Employee meets the
requirements of Section 1 above, he may elect to
continue to receive all medical and home pharmacy
coverage under the Plan, for him and his spouse, (if
he has been married to such spouse for at least the
one-year period prior to such termination of
employment and if such spouse is covered under the
Plan at the time of such termination of employment
and is not entitled to Medicare). Coverage for the
former Employee shall end on the date he becomes
entitled to benefits under Medicare. Coverage for the
former Employee's spouse shall end on the date such
spouse becomes entitled to benefits under Medicare
or, if earlier, on the date such person ceases to be
the former Employee's spouse on account of divorce.
(b) Deductible. There shall be a yearly
deductible of $500 per covered individual.
(c) Employee Cost. The Employee's cost to
participate in the Plan is $75 per month. In the
event coverage of the former Employee terminates on
account of his becoming entitled to Medicare, or in
the event of his death, the monthly premium for
coverage of his spouse (or surviving spouse, as the
case may be) thereafter, if such spouse (or surviving
spouse) is otherwise then entitled to coverage, shall
continue to be $75.
(d) Exclusions. The Plan DOES NOT include
dental, vision, disability or life insurance
benefits.
3. Tax Implications. The Employee understands that a portion of the
benefits received under the Plan will be considered taxable income
under Section 105(h) of the Internal Revenue Code of 1986, as amended,
and Treasury
-3-
4
Regulation Section 1.105-11(d)(3)(iii), as amended. The Company shall
annually notify the Employee electing such coverage (or the spouse or
surviving spouse of such a former Employee, where such former Employee
no longer has coverage under the Plan and where such spouse continues
to have such coverage) of the amount of benefits paid on behalf of such
former Employee and/or his spouse or surviving spouse which are
considered taxable income.
4. Governing Terms. The Agreement is amended only to the extent set
forth herein and to the extent that there are any conflicts between
this Amendment and the Agreement, the terms of this Amendment shall
govern. All other terms, conditions and provisions of the Agreement
shall remain in full force and effect. This Amendment may not be
changed without the written consent of the parties hereto.
5. Governing Law. This Amendment shall be interpreted and enforced in
accordance with the laws of the State of Illinois, without regard to
its conflicts of law doctrine, and the Employee hereby consents to
personal jurisdiction in Illinois.
6. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall constitute an original, but all of
which together shall constitute one and the same.
7. Headings. The section headings of this Amendment are for reference
purposes only and are to be given no effect in the construction or
interpretation of this Amendment.
8. Assignment. The rights and obligations of the Company under this
Amendment shall inure to the benefit of and shall be binding upon the
successors and assigns of the Company.
9. Waiver. The failure to enforce any of the provisions of this
Amendment shall in no way be construed to be a waiver of such
provisions or to affect either the validity of this Amendment, or any
part hereof, or the right of either party thereafter to enforce each
and every provision in accordance with the terms of this Amendment.
- 4 -
5
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date and year first above written.
UNITED STATES CAN COMPANY
-------------------------------------------
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------
Its: President and Chief Executive Officer
--------------------------------------
EMPLOYEE
/s/ Xxxxx X. Xxxxxx
-------------------------------------------
Xxxxx X. Xxxxxx
- 5 -
