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EXHIBIT 10.2(b)
AMENDMENT NO. 1 TO
EMPLOYMENT AGREEMENT
This Amendment No. 1 to Employment Agreement ("Amendment No. 1") is
entered into as of March 1, 2000 by and between Xxxxxxx Container Corporation, a
Delaware Corporation ("Xxxxxxx") and Xxxxxx X. Xxxxxxxxx ("Xxxxxxxxx").
RECITALS:
Xxxxxxx and Xxxxxxxxx entered into an Employment Agreement dated as of
June 1, 1997 ("Agreement");
Xxxxxxx and Xxxxxxxxx desire to amend that Agreement.
AGREEMENT:
In consideration of the premises and the mutual covenants herein
contained, Xxxxxxx and Xxxxxxxxx do hereby agree with each other as follows:
1. Change in Control Payments. Xxxxxxx agrees that in the event of
a Change in Control, whether during or after the term of Employment, Xxxxxxxxx
shall be entitled to the following: (The capitalized terms used in this
Amendment are defined below.)
a. Supplemental Retirement Benefits. Xxxxxxxxx, or if he is
deceased, his spouse, shall receive a lump sum representing supplemental
retirement payments pursuant to Section 2.04. Such lump sum shall be payable no
later than the fifth (5th) business day following the Change in Control and
shall be calculated as follows:
The benefit payable under Section 2.04 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 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 at commencement date; and
(b) is the monthly benefit otherwise payable under the plan if
the participant had retired and started benefits on the commencement date.
The "after-tax basis" and "marginal tax rate" as described above shall
be determined by the Committee, with the assistance of the Actuary.
b. Shareholder Value Plan. Xxxxxxxxx shall receive all amounts
payable under Gaylord's Shareholder Value Plan. If a Change in Control occurs
during the measurement
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period for the "end of year share value" for calendar year 2000 (as defined by
the Shareholder Value Plan), any payments due under the Shareholder Value Plan
for calendar year 2000 shall be deemed compensation for calendar year 2000,
whether actually paid in calendar year 2000 or subsequently, for purposes of
calculating Xxxxxxxxx'x lump sum supplemental retirement payments under Section
2.04 of the Agreement.
c. Excise Tax. In the event Xxxxxxxxx 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
Xxxxxxxxx, 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 (i) any excise tax to which
Xxxxxxxxx is subject under Section 4999, including interest and penalties; and
(ii) all federal income, state income, payroll or other taxes to which Xxxxxxxxx
may be subject with respect to the Gross-Up Payment. It is the intent of this
provision that Xxxxxxxxx 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.
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 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. Except as expressly modified in this Amendment, all other
provisions of the Agreement are hereby re-affirmed.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement on the
date first above written.
XXXXXX X. XXXXXXXXX XXXXXXX CONTAINER CORPORATION
By: By:
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Executive Vice President
