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EXHIBIT 10.1(b)
AMENDMENT NO. 2 TO
EMPLOYMENT AGREEMENT
This Amendment No. 2 to Employment Agreement ("Amendment No. 2") is
entered into as of March 1, 2000 by and between Xxxxxxx Container Corporation, a
Delaware Corporation ("Xxxxxxx"), and Xxxxxx X. Xxxxxxx ("Xxxxxxx").
RECITALS:
Xxxxxxx and Xxxxxxx entered into an Employment Agreement dated as of
May 18, 1988 ("Agreement") and an Amendment No. 1 to the Agreement, dated as of
February 8, 1989;
Xxxxxxx and Xxxxxxx desire to further amend that Agreement.
In consideration of the premises and the mutual covenants herein
contained, Xxxxxxx and Xxxxxxx do hereby agree with each other as follows:
1. Section 2.04 Supplemental Retirement Payments is amended to include
the following:
In the event of a Change in Control as defined herein, Xxxxxxx shall
receive a lump sum payment payable as of the Change in Control in lieu of
supplemental retirement payments. Such lump sum shall be calculated as follows:
The benefit payable under this Section 2.04 to the participant, or if
he is deceased, his spouse, shall be a lump sum amount equal to an amount which
is sufficient to provide, on an after-tax basis, monthly benefits for the life
of the participant and the life of the participant's spouse if a joint and
survivor benefit is payable under the retirement plan, commencing at the date of
the Change in Control ("commencement date") actuarially equivalent to the
product of (a) times (b) where:
(a) is one minus the participant's, or if he is deceased, his
spouse's, marginal tax rate in effect as of the date of the Change in Control;
and
(b) is the monthly benefit otherwise payable under this Section
2.04.
The "after-tax basis" and "marginal tax rate" as described above shall
be determined by the Committee, with the assistance of the Actuary.
2. For purposes of this Amendment, "Change in Control" means the
occurrence of one of the following events:
a. if any "person" or "group" as those terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended ("Exchange
Act"), other than an
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Exempt Person, is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of Xxxxxxx
representing 50% or more of the combined voting power of Gaylord's then
outstanding securities; or
b. during any period of two consecutive years, individuals who at
the beginning of such period constitute the Board and any new director whose
election by the Board or nomination for election by Gaylord's stockholders was
approved by at least two-thirds (2/3) of the directors then still in office who
either were directors at the beginning of the period or whose election was
previously so approved, cease for any reason to constitute a majority thereof;
or
c. the stockholders of Xxxxxxx approve a merger or consolidation of
Xxxxxxx with any other corporation, other than a merger or consolidation which
would result in all or a portion of the voting securities of Xxxxxxx outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) more than 50% of the combined voting power of the voting securities of
Xxxxxxx or such surviving entity outstanding immediately after such merger or
consolidation, or the stockholders of Xxxxxxx approve a plan of complete
liquidation of Xxxxxxx or an agreement for the sale or disposition by Xxxxxxx of
all or substantially all of Gaylord's assets, other than a sale to an Exempt
Person.
3. Excise Tax. In the event Xxxxxxx becomes subject to any excise tax
imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the
"Code") (or any successor provisions thereto), the Company shall pay to Xxxxxxx,
no later than 30 days following any "change in ownership or control of the
Company" as defined in Code Section 280G (or any successor provision thereto),
an amount ("Gross-Up Payment") equal to (a) any excise tax to which Xxxxxxx is
subject under Section 4999, including interest and penalties; and (b) all
federal income, state income, payroll or other taxes to which Xxxxxxx may be
subject with respect to the Gross-Up Payment. It is the intent of this provision
that Xxxxxxx receive a Gross-Up Payment sufficient to place him in the same
position as if the excise tax imposed by Code Section 4999 did not exist.
4. Except as modified herein, the Agreement shall remain unchanged.
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 2
on the date first above written.
XXXXXX X. XXXXXXX XXXXXXX CONTAINER CORPORATION
By: By:
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Executive Vice President
